Vol. 80 Monday, No. 138 July 20, 2015

Pages 42707–43006

OFFICE OF THE FEDERAL REGISTER

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Contents Federal Register Vol. 80, No. 138

Monday, July 20, 2015

Agriculture Department Energy Department See Rural Utilities Service See Federal Energy Regulatory Commission NOTICES Agency Information Collection Activities; Proposals, Environmental Protection Agency Submissions, and Approvals, 42787–42788 RULES Meetings: Air Quality State Implementation Plans; Approvals and National Agricultural Research, Extension, Education, Promulgations: and Economics Advisory Board, 42787 Illinois; Midwest Generation Variances, 42726–42727 North Carolina; Nitrogen Dioxide and Sulfur Dioxide Centers for Disease Control and Prevention National Ambient Air Quality Standards Changes, NOTICES 42733–42735 Agency Information Collection Activities; Proposals, Texas; Low Reid Vapor Pressure Fuel Regulations, Submissions, and Approvals, 42820–42822 42730–42733 Meetings: Texas; Revisions to the New Source Review; Flexible Advisory Board on Radiation and Worker Health, Permit Program, 42727–42730 National Institute for Occupational Safety and Hazardous Waste Management System; Identification and Health; Correction, 42822 Listing of Hazardous Waste Amendment, 42735–42738 Advisory Committee to the Director, Health Disparities Protection of Stratospheric Ozone: Subcommittee, 42820 Change of Listing Status for Certain Substitutes under the Compliance with the Federal Select Agent Program, Significant New Alternatives Policy Program, 42870– 42819–42820 42959 The Importation and Exportation of Infectious Biological TSCA Section 5 Premanufacture and Significant New Use Agents, Infectious Substances and Vectors, 42822 Notification Electronic Reporting, 42739–42747 PROPOSED RULES Children and Families Administration Air Quality State Implementation Plans; Approvals and NOTICES Promulgations: Agency Information Collection Activities; Proposals, Alabama; Infrastructure Requirements for the 2008 Lead Submissions, and Approvals: National Ambient Air Quality Standards, 42765– Accomplishments of the Domestic Violence Hotline, 42774 Online Connections and Text Study, 42823 Florida; Combs Oil Company Variance, 42763–42765 Commerce Department Georgia Infrastructure Requirements for the 2008 8-hour See Foreign-Trade Zones Board Ozone National Ambient Air Quality Standards, See International Trade Administration 42777–42786 See National Oceanic and Atmospheric Administration Mississippi; Miscellaneous Changes, 42774–42777 North Carolina; Nitrogen Dioxide and Sulfur Dioxide Defense Department National Ambient Air Quality Standards Revisions, NOTICES 42777 Agency Information Collection Activities; Proposals, Texas; Low Reid Vapor Pressure Fuel Regulations, 42763 Submissions, and Approvals: NOTICES Federal Acquisition Regulation; U.S. Flag Air Carriers Pesticide Product Registrations: Statement, 42819 Applications for New Active Ingredients, 42802–42803 Charter Renewals: Federal Advisory Committees, 42794–42795 Federal Aviation Administration Meetings: RULES Judicial Proceedings since Fiscal Year 2012 Amendments Airworthiness Directives: Panel, 42795–42796 General Electric Company Turbofan Engines, 42707– 42708 Drug Enforcement Administration Amendment of Class B Airspace: NOTICES New Orleans, LA, 42708–42710 Decisions and Orders: PROPOSED RULES Syed Jawed Akhtar-Zaidi, M.D., 42962–42996 Airworthiness Directives: The Boeing Company Airplanes, 42756–42760 Education Department Amendment of Class E Airspace: NOTICES Portland, OR, 42760–42761 List of Correspondence: Bird Strike Requirements for Transport Category Airplanes, April 1, 2014, through June 30, 2014; July 1, 2014, 42753–42756 through September 30, 2014, 42796–42797 Proposed Establishment of Restricted Areas: R–2507W, Chocolate Mountains, CA, 42761–42763 Employment and Training Administration NOTICES Federal Emergency Management Agency Trade Adjustment Assistance Program; Designation of NOTICES Certifying Officers, 42841–42842 Final Flood Hazard Determinations, 42830–42834

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Major Disaster Declarations: Determinations that Products Were Not Withdrawn From Texas; Amendment No. 3, 42832 Sale for Reasons of Safety or Effectiveness: Texas; Amendment No. 4, 42835 TESSALON (Benzonatate) Capsules and Other Drug Meetings: Products, 42828–42829 Technical Mapping Advisory Council, 42835–42836 Guidance: Bioequivalence Recommendations for Lubiprostone, Federal Energy Regulatory Commission 42829–42830 NOTICES Meetings: Combined Filings, 42797–42802 Prescription Drug User Fee Act; Stakeholder Consultation Complaints: on the Prescription Drug User Fee Act Caithness Long Island II, LLC v. New York Independent Reauthorization; Request for Notification of System Operator, Inc., 42802 Stakeholder Intention to Participate, 42825–42826 Linden VFT, LLC v. PJM Interconnection, LLC, 42797 Nominations for List of Bulk Drug Substances an Outsourcing Facility May Use to Compound Drugs for Federal Highway Administration Use in Animals, 42827–42828 NOTICES Final Federal Agency Actions on Proposed Highway in Foreign-Trade Zones Board Hawaii, 42864–42865 NOTICES Proposed Production Activities: Federal Railroad Administration The Cookson Company, Inc., Foreign-trade Zone 277, NOTICES Western Maricopa County, AZ, 42789 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 42865–42866 General Services Administration NOTICES Federal Reserve System Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals: Agency Information Collection Activities; Proposals, Federal Acquisition Regulation; U.S. Flag Air Carriers Submissions, and Approvals, 42803–42806 Statement, 42819

Federal Retirement Thrift Investment Board Geological Survey NOTICES NOTICES Meetings; Sunshine Act, 42806 Meetings: National Earthquake Prediction Evaluation Council, Federal Trade Commission 42838–42839 RULES Scientific Earthquake Studies Advisory Committee, 42839 Interpretations of Magnuson–Moss Warranty Act: Disclosure of Written Consumer Product Warranty Terms Health and Human Services Department and Conditions; Pre-Sale Availability of Written See Centers for Disease Control and Prevention Warranty Terms; etc., 42710–42723 See Children and Families Administration NOTICES See Food and Drug Administration Agency Information Collection Activities; Proposals, See National Institutes of Health Submissions, and Approvals, 42806–42810 Proposed Consent Orders: Homeland Security Department Dollar Tree, Inc. and Family Dollar Stores, Inc., 42810– See Federal Emergency Management Agency 42819 Interior Department Fish and Wildlife Service See Fish and Wildlife Service NOTICES See Geological Survey Endangered and Threatened Wildlife and Plants: Relict Leopard Frog; Enhancement of Survival Permit; Proposed Programmatic Candidate Conservation International Trade Administration Agreement with Assurances; Clark County, NV, NOTICES 42837–42838 Antidumping or Countervailing Duty Investigations, Orders, Endangered Species Permit Applications, 42836–42837 or Reviews: Polyethylene Retail Carrier Bags from Thailand; Initiation Food and Drug Administration and Preliminary Results of Antidumping Duty RULES Changed Circumstances Review, 42789–42790 Regulatory Hearing Before the Food and Drug Administration, 42723 International Trade Commission NOTICES NOTICES Agency Information Collection Activities; Proposals, Investigations; Determinations, Modifications, and Rulings, Submissions, and Approvals: etc.: Market Claims in Direct-to-Consumer Prescription Drug Certain Resealable Packages with Slider Devices, 42839– Print Ads, 42823–42825 42840 Debarment Orders: David J. Brancato; Grant of Special Termination, 42826– Justice Department 42827 See Drug Enforcement Administration

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NOTICES Meetings; Sunshine Act, 42845 Agency Information Collection Activities; Proposals, Site Release: Submissions, and Approvals: GE Hitachi Nuclear Energy, Vallecitos Nuclear Center, Unfair Immigration-Related Employment Practices 42846–42847 Complaint Form, 42840–42841 Proposed Consent Decrees under the Clean Air Act, 42840 Postal Regulatory Commission RULES Labor Department Update to Product Lists, 42723–42726 See Employment and Training Administration NOTICES See Labor–Management Standards Office New Postal Products, 42847 Labor–Management Standards Office Presidential Documents NOTICES EXECUTIVE ORDERS Agency Information Collection Activities; Proposals, Committees; Establishment, Renewal, Termination, etc.: Submissions, and Approvals: New Jersey Transit Rail Labor Disputes; Establishment of Labor Organization and Auxiliary Reports, 42842 Emergency Board To Investigate (EO 13700), 43003– National Aeronautics and Space Administration 43005 ADMINISTRATIVE ORDERS NOTICES Foreign Assistance Act of 1961; Transfer of Funds, Agency Information Collection Activities; Proposals, Delegation of Authority (Memorandum of June 25, Submissions, and Approvals: 2015), 43001 Federal Acquisition Regulation; U.S. Flag Air Carriers United States–Israel Strategic Partnership Act of 2014; Statement, 42819 Delegation of Authority (Memorandum of June 19, 2015), 42997–42999 National Endowment for the Arts NOTICES Meetings: Rural Utilities Service Arts Advisory Panel, 42842–42843 NOTICES Agency Information Collection Activities; Proposals, National Foundation on the Arts and the Humanities Submissions, and Approvals, 42788 See National Endowment for the Arts Securities and Exchange Commission National Institutes of Health NOTICES NOTICES Applications: Meetings: Crescent Capital Group, LP, 42857–42859 Center for Scientific Review, 42830 Self-Regulatory Organizations; Proposed Rule Changes: Eunice Kennedy Shriver National Institute of Child Miami International Securities Exchange, LLC, 42856– Health and Human Development, 42830 42857 NASDAQ OMX PHLX, LLC, 42862–42863 National Oceanic and Atmospheric Administration NYSE Arca, Inc., 42860–42862 RULES The NASDAQ Stock Market, LLC, 42847–42855 Fisheries of the Northeastern United States: Atlantic Surfclam and Ocean Quahog Fisheries, 42747– State Department 42752 NOTICES NOTICES Culturally Significant Objects Imported for Exhibition: Environmental Impact Statements; Availability, etc.: Ancient Egypt Transformed –– The Middle Kingdom, Final NOAA Restoration Center, 42791 42864 Fisheries of the Exclusive Economic Zone Off Alaska: New Objectivity –– Modern German Art in the Weimar Bering Sea and Aleutian Islands Crab Rationalization Republic 1919–1933, 42863–42864 Cost Recovery Program, 42792 Strength and Splendor –– Wrought Iron from the Musee Meetings: Le Secq des Tournelles, 42864 Fisheries of the South Atlantic Southeast Data, Assessment and Review, 42790–42791 Transportation Department North Pacific Fishery Management Council, 42791–42792 See Federal Aviation Administration Public Hearings: See Federal Highway Administration South Atlantic Fishery Management Council, 42793– See Federal Railroad Administration 42794 Treasury Department National Science Foundation NOTICES NOTICES Public Input on Expanding Access to Credit through Online Agency Information Collection Activities; Proposals, Marketplace Lending, 42866–42868 Submissions, and Approvals, 42843–42845 Meetings; Sunshine Act, 42843

Nuclear Regulatory Commission Separate Parts In This Issue NOTICES License Amendment Applications: Part II Virgil C. Summer Nuclear Station, Units 2 and 3, 42845 Environmental Protection Agency, 42870–42959

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Part III Reader Aids Justice Department, Drug Enforcement Administration, Consult the Reader Aids section at the end of this issue for 42962–42996 phone numbers, online resources, finding aids, and notice of recently enacted public laws. Part IV To subscribe to the Federal Register Table of Contents Presidential Documents, 42997–42999, 43001, 43003–43005 LISTSERV electronic mailing list, go to http:// listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.

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CFR PARTS AFFECTED IN THIS ISSUE

A cumulative list of the parts affected this month can be found in the Reader Aids section at the end of this issue.

3 CFR Executive Orders: 13700...... 43003 Administrative Orders: Memorandums: Memorandum of June 19, 2015 ...... 42999 Memorandum of June 25, 2015 ...... 43001 14 CFR 39...... 42707 71...... 42708 Proposed Rules: 25...... 42753 39...... 42756 71...... 42760 73...... 42761 16 CFR 700...... 42710 701...... 42710 703...... 42710 21 CFR 16...... 42723 39 CFR 3020...... 42723 40 CFR 52 (4 documents) ...... 42726, 42727, 42730, 42733 82...... 42870 261...... 42735 720...... 42739 721...... 42739 723...... 42739 725...... 42739 Proposed Rules: 52 (6 documents) ...... 42763, 42765, 42774, 42777 50 CFR 648...... 42747

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Rules and Regulations Federal Register Vol. 80, No. 138

Monday, July 20, 2015

This section of the FEDERAL REGISTER Examining the AD Docket greater level of protection from damage contains regulatory documents having general You may examine the AD docket on to the engine due to ice crystal icing. applicability and legal effect, most of which United indicated that the proposed AD are keyed to and codified in the Code of the Internet at http:// www.regulations.gov by searching for would allow engines to operate with Federal Regulations, which is published under FADEC software versions B178 and 50 titles pursuant to 44 U.S.C. 1510. and locating Docket No. FAA–2015– 0165; or in person at the Docket B180, which do not provide the The Code of Federal Regulations is sold by Management Facility between 9 a.m. protection of software version B185. the Superintendent of Documents. Prices of and 5 p.m., Monday through Friday, We do not agree. We find that new books are listed in the first FEDERAL except Federal holidays. The AD docket precluding use of FADEC software REGISTER issue of each week. contains this AD, the regulatory version B175 or earlier provides an evaluation, any comments received, and adequate level of safety for inadvertent encounters in ICI environments. We did DEPARTMENT OF TRANSPORTATION other information. The address for the Docket Office (phone: 800–647–5527) is not change this AD. Federal Aviation Administration Document Management Facility, U.S. Request To Withdraw AD and Department of Transportation, Docket Supersede Another AD 14 CFR Part 39 Operations, M–30, West Building United requested that we withdraw Ground Floor, Room W12–140, 1200 the proposed rule and, instead New Jersey Avenue SE., Washington, [Docket No. FAA–2015–0165; Directorate supersede AD 2013–24–01 (78 FR Identifier 2015–NE–02–AD; Amendment 39– DC 20590. 70851, November 27, 2013), which 18212; AD 2015–15–03] FOR FURTHER INFORMATION CONTACT: requires revising the airplane flight Christopher McGuire, Aerospace manual for Model 747–8 and 747–8F RIN 2120–AA64 Engineer, Engine Certification Office, series airplanes and Model 787–8 FAA, Engine & Propeller Directorate, 12 airplanes powered by GEnx engines. Airworthiness Directives; General New England Executive Park, We do not agree. Our AD addresses Electric Company Turbofan Engines Burlington, MA 01803; phone: 781– the susceptibility of GEnx engines when 238–7120; fax: 781–238–7199; email: operating inadvertently in ICI AGENCY: Federal Aviation [email protected]. conditions. AD 2013–24–01 (78 FR Administration (FAA), DOT. SUPPLEMENTARY INFORMATION: 70851, November 27, 2013) is setting ACTION: Final rule. Discussion operational limitations on Boeing Model 747–8, 747–8F, and 787–8 airplanes We issued a notice of proposed SUMMARY: equipped with GEnx engines. The ADs We are adopting a new rulemaking (NPRM) to amend 14 CFR airworthiness directive (AD) for all have different purposes, and part 39 by adding an AD that would superseding AD 2013–24–01 is outside General Electric Company (GE) GEnx apply to all General Electric Company turbofan engine models. This AD was the scope of this AD. We did not (GE) GEnx turbofan engine models. The withdraw this AD. prompted by reports of GEnx-1B and NPRM published in the Federal GEnx-2B engines experiencing power Register on March 17, 2015 (80 FR Support for the NPRM loss in ice crystal icing (ICI) conditions. 13797). The NPRM was prompted by The Boeing Company and the General This AD precludes the use of full reports of GEnx-1B and GEnx-2B authority digital engine control (FADEC) Electric Company expressed support for engines experiencing power loss in ICI the proposed rule. software, version B175 or earlier, in conditions. The NPRM proposed to GEnx-1B engines, and the use of FADEC preclude the use of FADEC software, Conclusion software, version C065 or earlier, in version B175 or earlier, in GEnx-1B We reviewed the relevant data, GEnx-2B engines. We are issuing this engines, and the use of FADEC software, considered the comments received, and AD to prevent engine failure, loss of version C065 or earlier, in GEnx-2B determined that air safety and the thrust control, and damage to the engines. We are issuing this AD to public interest require adopting this AD airplane. correct the unsafe condition on these as proposed. products. DATES: This AD is effective August 24, Costs of Compliance 2015. Comments We estimate that this AD affects 80 ADDRESSES: For service information We gave the public the opportunity to engines installed on airplanes of U.S. identified in this AD, contact General participate in developing this AD. The registry. We also estimate that it will Electric Company, GE Aviation, Room following presents the comments take about 1 hour per engine to comply 285, 1 Neumann Way, Cincinnati, OH received on the NPRM and the FAA’s with this AD. The average labor rate is 45215; phone: 513–552–3272; email: response to each comment. $85 per hour. No parts are required. [email protected]. You may view this Based on these figures, we estimate the Request To Delay Issuance of AD service information at the FAA, Engine total cost of the AD to U.S. operators to & Propeller Directorate, 12 New England United Airlines (United) commented be $6,800. Executive Park, Burlington, MA 01803. that this AD should not be issued until For information on the availability of after GEnx-1B FADEC software version Authority for This Rulemaking this material at the FAA, call 781–238– B185 is released. United noted that Title 49 of the United States Code 7125. software version B185 will provide a specifies the FAA’s authority to issue

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rules on aviation safety. Subtitle I, 2015–15–03 General Electric Company: (h) Material Incorporated by Reference section 106, describes the authority of Amendment 39–18212; Docket No. None. the FAA Administrator. Subtitle VII: FAA–2015–0165; Directorate Identifier 2015–NE–02–AD. Issued in Burlington, Massachusetts, on Aviation Programs, describes in more July 13, 2015. detail the scope of the Agency’s (a) Effective Date Carlos A. Pestana, authority. This AD is effective August 24, 2015. We are issuing this rulemaking under Acting Directorate Manager, Engine & (b) Affected ADs Propeller Directorate, Aircraft Certification the authority described in Subtitle VII, Service. Part A, Subpart III, Section 44701: None. ‘‘General requirements.’’ Under that [FR Doc. 2015–17703 Filed 7–17–15; 8:45 am] (c) Applicability section, Congress charges the FAA with BILLING CODE 4910–13–P promoting safe flight of civil aircraft in This AD applies to all General Electric air commerce by prescribing regulations Company (GE) GEnx–1B model turbofan engines with full authority digital engine DEPARTMENT OF TRANSPORTATION for practices, methods, and procedures control (FADEC) software version B175 or the Administrator finds necessary for earlier, installed, and GEnx–2B model Federal Aviation Administration safety in air commerce. This regulation turbofan engines with FADEC software is within the scope of that authority version C065 or earlier, installed. 14 CFR Part 71 because it addresses an unsafe condition that is likely to exist or develop on (d) Unsafe Condition [Docket No. FAA–2015–2219; Airspace products identified in this rulemaking This AD was prompted by reports of Docket No. 15–AWA–5] GEnx–1B and GEnx–2B engines experiencing action. RIN 2120–AA66 power loss in ice crystal icing (ICI) Regulatory Findings conditions. We are issuing this AD to prevent Amendment of Class B Airspace; New This AD will not have federalism engine failure, loss of thrust control, and Orleans, LA implications under Executive Order damage to the airplane. 13132. This AD will not have a (e) Compliance AGENCY: Federal Aviation Administration (FAA), DOT. substantial direct effect on the States, on Comply with this AD within the the relationship between the national compliance times specified, unless already ACTION: Final rule, technical government and the States, or on the done. amendment. distribution of power and (1) Thirty days after the effective date of responsibilities among the various this AD, do not operate any GE GEnx–1B SUMMARY: This action amends Class B levels of government. engine with FADEC software version B175 or airspace at the Louis Armstrong New For the reasons discussed above, I earlier, installed in the electronic engine Orleans International Airport, New certify that this AD: control (EEC). Orleans, LA, by removing reference to (1) Is not a ‘‘significant regulatory (2) Thirty days after the effective date of the Instrument Landing System (ILS) action’’ under Executive Order 12866, this AD, do not operate any GE GEnx–2B Runway 10 Outer Compass Locator (2) Is not a ‘‘significant rule’’ under engine with FADEC software version C065 or (LOM) from the text header information DOT Regulatory Policies and Procedures earlier, installed in the EEC. and surface area (Area A) description (44 FR 11034, February 26, 1979), (f) Alternative Methods of Compliance and replacing it in the Area A (3) Will not affect intrastate aviation (AMOCs) description with the geographic in Alaska to the extent that it justifies The Manager, Engine Certification Office, latitude/longitude coordinates of the making a regulatory distinction, and FAA, may approve AMOCs to this AD. Use LOM. This change is necessary due to (4) Will not have a significant the procedures found in 14 CFR 39.19 to the planned decommissioning of the economic impact, positive or negative, make your request. You may email your LOM navigation aid. The Louis on a substantial number of small entities request to: ANE–AD–[email protected]. Armstrong New Orleans International under the criteria of the Regulatory (g) Related Information Airport and New Orleans Naval Air Flexibility Act. Station Joint Reserve Base (Alvin (1) For more information about this AD, List of Subjects in 14 CFR Part 39 contact Christopher McGuire, Aerospace Callender Field) airport names and airport reference point (ARP) geographic Air transportation, Aircraft, Aviation Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New coordinates are also updated. The St. safety, Incorporation by reference, England Executive Park, Burlington, MA Charles and Lakefront airports, used in Safety. 01803; phone: 781–238–7120; fax: 781–238– the Class B description, are added in the Adoption of the Amendment 7199; email: [email protected]. legal description text header (2) GE GEnx–1B Service Bulletin (SB) No. information, as well as, the Harvey VHF Accordingly, under the authority 73–0036 R00, dated January 6, 2015, and GE Omnidirectional Range/Tactical Air delegated to me by the Administrator, GEnx–2B SB No. 73–0035 R00, dated Navigation (VORTAC) navigation aid. the FAA amends 14 CFR part 39 as September 16, 2014, which are not Lastly, general editing of the legal follows: incorporated by reference in this AD, can be obtained from GE using the contact description is accomplished to improve PART 39—AIRWORTHINESS information in paragraph (g)(3) of this AD. clarity. These changes are editorial only DIRECTIVES (3) For service information identified in to match existing FAA aeronautical this proposed AD, contact General Electric database information and do not alter ■ 1. The authority citation for part 39 Company, GE Aviation, Room 285, 1 the current charted boundaries or continues to read as follows: Neumann Way, Cincinnati, OH 45215; altitudes or the ATC procedures for the phone: 513–552–3272; email: New Orleans Class B airspace area. Authority: 49 U.S.C. 106(g), 40113, 44701. [email protected]. DATES: Effective Date: 0901 UTC, § 39.13 [Amended] (4) You may view this service information at the FAA, Engine & Propeller Directorate, November 12, 2015. The Director of the ■ 2. The FAA amends § 39.13 by adding 12 New England Executive Park, Burlington, Federal Register approves this the following new airworthiness MA. For information on the availability of incorporation by reference action under directive (AD): this material at the FAA, call 781–238–7125. 1 CFR part 51, subject to the annual

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revision of FAA Order 7400.9 and Airport (formerly New Orleans The Rule publication of conforming amendments. International Airport-Moisant Field), the The FAA is amending Title 14 of the ADDRESSES: FAA Order 7400.9Y, Class B airspace area was designed Airspace Designations and Reporting using the ARP latitude/longitude Code of Federal Regulations (14 CFR) Points, and subsequent amendments can coordinates as the center point. When part 71 by amending the New Orleans be viewed online at http://www.faa.gov/ established, the surface area (Area A) Class B airspace legal description for the air_traffic/publications/. The Order is included an extension, described using Louis Armstrong New Orleans also available for inspection at the an arc around the ILS Runway 10 LOM. International Airport, New Orleans, LA. National Archives and Records In October 2015, the ILS Runway 10 This action removes all references to the Administration (NARA). For LOM is being decommissioned because ‘‘ILS Runway 10 Outer Compass information on the availability of this it cannot be cost-effectively maintained Locator’’ and replaces it in the Area A material at NARA, call (202) 741–6030, any longer. To retain the existing description with a point located at the or go to http://www.archives.gov/ charted boundaries of the New Orleans same latitude/longitude geographic federal_register/code_of_federal- Class B airspace surface area, the FAA coordinates of the LOM. This rule regulations/ibr_locations.html. is using the geographic latitude/ updates the New Orleans International FAA Order 7400.9, Airspace longitude coordinates of the ILS Airport-Moisant Field name to the Louis Designations and Reporting Points, is Runway 10 LOM being decommissioned Armstrong New Orleans International published yearly and effective on to describe the Class B airspace Area A Airport, and the ARP Geographic September 15. For further information, extension. All references to the LOM in coordinates from ‘‘lat. 29°59′36″ N., you can contact the Airspace Policy and the New Orleans Class B airspace long. 90°15′28″ W.’’ to ‘‘lat. 29°59′36″ Regulations Group, Federal Aviation description are being removed and N., long. 90°15′33″ W.’’ Additionally, it Administration, 800 Independence reference to the LOM in the Area A updates the NAS New Orleans-Alvin Avenue SW., Washington, DC 20591; description is being replaced by a point Callender Field name to New Orleans telephone: (202) 267–8783. using the geographic latitude/longitude Naval Air Station Joint Reserve Base coordinates of the ILS Runway 10 LOM. (Alvin Callender Field), and the ARP FOR FURTHER INFORMATION CONTACT: In preparation of updating the New geographic coordinates from ‘‘lat. Colby Abbott, Airspace Policy and Orleans Class B airspace description, Regulations Group, Office of Airspace 29°49′31″ N., long. 90°02′06″ W.’’ to the FAA reviewed the aeronautical ° ′ ″ ° ′ ″ Services, Federal Aviation database and determined that the New ‘‘lat. 29 49 38 N., long. 90 01 36 W.’’ Administration, 800 Independence Orleans International Airport-Moisant This action also adds the St. Charles and Avenue SW., Washington, DC 20591; Field name had changed to the Louis Lakefront Airports and their associated telephone: (202) 267–8783. Armstrong New Orleans International ARP geographic coordinates, as well as SUPPLEMENTARY INFORMATION: Airport, the NAS New Orleans-Alvin the Harvey VORTAC and its geographic coordinates to the legal description text Authority for This Rulemaking Callender Field name had changed to the New Orleans Naval Air Station Joint header information. Lastly, the Class B The FAA’s authority to issue rules Reserve Base (Alvin Callender Field), airspace description is edited to remove regarding aviation safety is found in and the respective ARP geographic confusing wording and improve clarity. Title 49 of the U.S. Code. Subtitle 1, coordinates for both had also changed. Regulatory Notices and Analyses Section 106 describes the authority of Further, the Class B airspace area legal the FAA Administrator. Subtitle VII, description used the St. Charles and The FAA has determined that this Aviation Programs, describes in more Lakefront airports in the Area C and regulation only involves an established detail the scope of the agency’s Area D descriptions, respectively, and body of technical regulations for which authority. This rulemaking is the Harvey VORTAC in the Area C frequent and routine amendments are promulgated under the authority description, but the airports and necessary to keep them operationally described in Subtitle VII, Part A, VORTAC information was omitted from current. It, therefore, (1) is not a Subpart I, Section 40103. Under that the Class B description text header. This ‘‘significant regulatory action’’ under section, the FAA is charged with action makes the required edits above. Executive Order 12866; (2) is not a prescribing regulations to assign the use Lastly, the descriptions have been ‘‘significant rule’’ under DOT of airspace necessary to ensure the edited to eliminate confusing wording Regulatory Policies and Procedures (44 safety of aircraft and the efficient use of and improve clarity. FR 11034; February 26, 1979); and (3) airspace. This regulation is within the The FAA is taking this action so that does not warrant preparation of a scope of that authority as it amends the the current boundaries of the New Regulatory Evaluation as the anticipated Class B airspace at the Louis Armstrong Orleans Class B airspace area are not impact is so minimal. Since this is a New Orleans International Airport, New affected by the decommissioning of the routine matter that only affects air traffic Orleans, LA. ILS Runway 10 LOM. procedures and air navigation, it is History Availability and Summary of certified that this rule, when The New Orleans Class B airspace Documents for Incorporation by promulgated, does not have a significant area was established as a Terminal Reference economic impact on a substantial Control Area (TCA) on July 17, 1975 (40 This document amends FAA Order number of small entities under the FR 20269, May 9, 1975). In 1993, as part 7400.9Y, airspace Designations and criteria of the Regulatory Flexibility Act. of the Airspace Reclassification Final Reporting Points, dated August 6, 2014, Since this action merely involves Rule (56 FR 65638, December 17, 1991), and effective September 15, 2014. FAA editorial changes in the legal the term ‘‘terminal control area’’ was Order 7400.9Y is publicly available as description of the New Orleans Class B replace by ‘‘Class B airspace area.’’ listed in the ADDRESSES section of this airspace area, and does not involve a Because there was no VHF final rule. FAA Order 7400.9Y lists change in the boundaries or altitudes or Omnidirectional Range (VOR) Class A, B, C, D, and E airspace areas, operating requirements of that airspace, navigation aid located on the Louis air traffic service routes, and reporting notice and public procedure under 5 Armstrong New Orleans International points U.S.C. 553(b) are unnecessary.

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Environmental Review N., long. 90°07′47″ W. to lat. 29°59′31″ N., Issued in Washington, DC, on July 7, 2015. long. 90°15′37″ W. to lat. 30°03′37″ N., long. Gary A. Norek, The FAA has determined that this ° ′ ″ action qualifies for categorical exclusion 90 22 10 W. Manager, Airspace Policy and Regulations Area B. That airspace extending upward under the National Environmental Group. from 600 feet MSL to and including 7,000 Policy Act in accordance with 311a, [FR Doc. 2015–17709 Filed 7–17–15; 8:45 am] feet MSL north of the south shore of Lake FAA Order 1050.1E, ‘‘Environmental BILLING CODE 4910–13–P Pontchartrain within a 7-mile radius of the Impacts: Policies and Procedures.’’ This Louis Armstrong New Orleans International airspace action is an editorial change Airport, excluding that airspace 0.5 mile FEDERAL TRADE COMMISSION only and is not expected to cause any either side of a line extending from lat. potentially significant environmental 30°01′10″ N., long. 90°07′47″ W. to lat. 16 CFR Parts 700, 701, and 703 impacts, and no extraordinary 29°59′31″ N., long. 90°15′37″ W. to lat. circumstances exist that warrant 30°03′37″ N., long. 90°22′10″ W. RIN 3084–AB24; 3084–AB25; 3084–AB26 preparation of an environmental Area C. That airspace extending upward Final Action Concerning Review of assessment. from 1,000 feet MSL to and including 7,000 Interpretations of Magnuson-Moss feet MSL within an area bounded by a line List of Subjects in 14 CFR Part 71 Warranty Act; Rule Governing beginning 7 miles southwest of the Louis Airspace, Incorporation by reference, Armstrong New Orleans International Airport Disclosure of Written Consumer Navigation (Air). on the north shore of the Mississippi River; Product Warranty Terms and Conditions; Rule Governing Pre-Sale Adoption of the Amendment thence east along the Mississippi River north shore to a point 0.5 mile east of and parallel Availability of Written Warranty Terms; In consideration of the foregoing, the Rule Governing Informal Dispute Federal Aviation Administration to the St. Charles Airport runway 17/35 extended centerline; thence southeast along a Settlement Procedures; and Guides for amends 14 CFR part 71 as follows: line 0.5 miles east of and parallel to the St. the Advertising of Warranties and Guarantees PART 71—DESIGNATION OF CLASS A, Charles Airport runway 17/35 extended B, C, D, AND E AIRSPACE AREAS; AIR centerline to the Southern Pacific Railroad AGENCY: Federal Trade Commission. TRAFFIC SERVICE ROUTES; AND track; thence southwest along the Southern ACTION: Final revised Interpretations; REPORTING POINTS Pacific Railroad track to a point 4 miles Final clerical changes to Rules; and southwest of the Louis Armstrong New Conclusion of review proceedings. ■ 1. The authority citation for part 71 Orleans International Airport; thence continues to read as follows: counterclockwise along a 4-mile radius of the SUMMARY: The Federal Trade Louis Armstrong New Orleans International Authority: 49 U.S.C. 106(f), 106(g); 40103, Commission (‘‘the Commission’’) is 40113, 40120, E.O. 10854, 24 FR 9565, 3 CFR, Airport to the north shore of the Mississippi announcing its final action in 1959–1963 Comp., p. 389. River; thence east along the north shore of connection with the review of a set of the Mississippi River to the Harvey VORTAC warranty-related Rules and Guides: The § 71.1 [Amended] 300° radial; thence southeast along the Interpretations of the Magnuson-Moss ■ 2. The incorporation by reference in Harvey VORTAC 300° radial to a point 7 Warranty Act (‘‘Interpretations’’ or ‘‘part 14 CFR 71.1 of FAA Order 7400.9Y, miles southeast of the Louis Armstrong New 700’’); the Rule Governing Disclosure of Airspace Designations and Reporting Orleans International Airport; thence Written Consumer Product Warranty Points, dated August 6, 2014, and clockwise along the 7-mile radius of the Terms and Conditions (‘‘Rule 701’’); the effective September 15, 2014, is Louis Armstrong New Orleans International Rule Governing Pre-Sale Availability of amended as follows: Airport to the point of beginning. Written Warranty Terms (‘‘Rule 702’’); Area D. That airspace extending upward the Rule Governing Informal Dispute Paragraph 3000 Subpart B—Class B from 2,000 feet MSL to and including 7,000 Settlement Procedures (‘‘Rule 703’’); Airspace. feet MSL within a 15-mile radius of the Louis and the Guides for the Advertising of * * * * * Armstrong New Orleans International Warranties and Guarantees (‘‘the Airport, excluding that airspace within Areas ASW LA B New Orleans, LA Guides’’ or ‘‘part 239’’). The A, B, and C previously described, that Interpretations represent the Louis Armstrong New Orleans International airspace within Area F described hereinafter, Airport (Primary Airport) Commission’s views on various aspects that airspace within the Lakefront Airport (Lat. 29°59′36″ N., long. 90°15′33″ W.) of the Magnuson-Moss Warranty Act Class D airspace area, and that airspace New Orleans Naval Air Station Joint Reserve (‘‘the Act’’ or ‘‘MMWA’’), and are Base (Alvin Callender Field), LA within a 4.4-mile radius of New Orleans intended to clarify the Act’s Naval Air Station Joint Reserve Base (Alvin (Lat. 29°49′38″ N., long. 90°01′36″ W.) requirements. Rule 701 specifies the Callender Field). Ama, St. Charles Airport, LA (pvt) information that must appear in a (Lat. 29°57′07″ N., long. 90°17′10″ W.) Area E. That airspace extending upward New Orleans, Lakefront Airport, LA from 4,000 feet MSL to and including 7,000 written warranty on a consumer (Lat. 30°02′33″ N., long. 90°01′42″ W.) feet MSL within a 20-mile radius of the Louis product. Rule 702 details the obligations Harvey VORTAC Armstrong New Orleans International of sellers and warrantors to make ° ′ ″ ° ′ ″ (Lat. 29 51 01 N., long. 90 00 11 W.) Airport, excluding that airspace within Areas warranty information available to Boundaries. A, B, C, and D previously described, and that consumers prior to purchase. Rule 703 Area A. That airspace extending upward airspace within Area F described hereinafter. specifies the minimum standards from the surface to and including 7,000 feet Area F. That airspace extending upward required for any informal dispute MSL within a 7-mile radius of the Louis from the surface to 1,000 feet MSL and from settlement mechanism that is Armstrong New Orleans International Airport 2,000 feet MSL to 7,000 feet MSL 0.5 mile incorporated into a written consumer and within a 1.5-mile radius of a point ° ′ ″ ° ′ ″ either side of a line extending from lat. product warranty, and that the located at lat. 30 01 31 N., long. 90 24 00 ° ′ ″ ° ′ ″ W., excluding that airspace north of the south 30 01 10 N., long. 90 07 47 W. to lat. consumer must use prior to pursuing ° ′ ″ ° ′ ″ shore of Lake Pontchartrain, that airspace 29 59 31 N., long. 90 15 37 W. to lat. any legal remedies in court. The Guides within and underlying Area C described 30°03′37″ N., long. 90°22′10″ W., excluding are intended to help advertisers avoid hereinafter, and that airspace 0.5 mile either that airspace below 600 feet MSL north of the unfair or deceptive practices in the side of a line extending from lat. 30°01′10″ south shore of Lake Pontchartrain. advertising of warranties or guarantees.

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DATES: The changes to the In addition, Commission staff has receive questions and requests for Interpretations and Rules will take effect recently issued a number of guidance advisory opinions, however, it on July 20, 2015. documents to better educate consumers determined that more comprehensive FOR FURTHER INFORMATION CONTACT: and businesses concerning their rights guidance was appropriate. Therefore, on Svetlana S. Gans, Staff Attorney, and obligations under the MMWA. For July 13, 1977, the Commission Division of Marketing Practices, Federal example, in order to cure perceived published in the Federal Register (42 Trade Commission, Washington, DC misconceptions in the marketplace, staff FR 36112) its Interpretations of the 20580, (202) 326–3708. issued and recently updated a consumer MMWA to assist warrantors and SUPPLEMENTARY INFORMATION: The alert stating that the MMWA prohibits suppliers of consumer products in MMWA, 15 U.S.C. 2301–2312, is the warrantors from voiding an automotive complying with the Act. federal law that governs consumer warranty merely because a consumer These Interpretations are intended to product warranties. Passed by Congress uses an aftermarket or recycled part or clarify the Act’s requirements for in 1975, the Act requires manufacturers third-party services to repair one’s manufacturers, importers, distributors, and sellers of consumer products to vehicle (subject to certain exceptions).3 and retailers. The Interpretations cover provide consumers with detailed Staff also updated the .Com Disclosures a wide range of subjects, including: The information about warranty coverage to provide additional guidance types of products considered ‘‘consumer before and after the sale of a warranted concerning online warranty disclosure products’’ under the Act; the differences product. When consumers believe they obligations 4 and issued letters to between a ‘‘written warranty,’’ ‘‘service are the victim of an MMWA violation, various online sellers concerning their contract’’ and ‘‘insurance’’; written the statute provides them the ability to obligations under the pre-sale warranty term requirements; the use of proceed through a warrantor’s informal availability rule.5 Staff will continue to warranty registration cards under full dispute resolution process or sue in evaluate whether additional guidance is and limited warranties; and illegal tying court. On August 23, 2011, the necessary to better inform both arrangements under Section 2302(c) of Commission published a Federal consumers and business concerning the Act. These Interpretations, like Register request for public comment, their rights and responsibilities under industry guides, are administrative soliciting written public comments the MMWA. interpretations of the law. Therefore, concerning five warranty Rules and they do not have the force of law and A. Background Guides: (1) The Commission’s are not independently enforceable. The Interpretations of the Magnuson-Moss 1. 16 CFR Part 700: Interpretations of Commission can take action under the Warranty Act, 16 CFR part 700; (2) the the Magnuson-Moss Warranty Act Federal Trade Commission Act (‘‘FTC Rule Governing Disclosure of Written (‘‘Interpretations’’) Act’’) and the MMWA, however, against Consumer Product Warranty Terms and The MMWA, 15 U.S.C. 2301–2312, claims that are inconsistent with the Conditions, 16 CFR part 701; (3) the which governs written warranties on Interpretations if the Commission has Rule Governing Pre-Sale Availability of consumer products, was signed into law reason to believe that such claims are Written Warranty Terms, 16 CFR part on January 4, 1975. After the Act was unfair or deceptive practices under 702; (4) the Rule Governing Informal passed, the Commission received many Section 5 or violate the MMWA. Dispute Settlement Procedures, 16 CFR questions concerning the Act’s part 703; and (5) the Guides for the 2. 16 CFR Part 701: Disclosure of requirements. In responding to these Advertising of Warranties and Written Consumer Product Warranty inquiries, the Commission initially Guarantees, 16 CFR part 239.1 The Terms and Conditions published, on June 18, 1975, a policy Commission requested comments on statement in the Federal Register (40 FR Section 2302(a) of the MMWA these Rules and Guides as part of its 25721) providing interim guidance authorizes the Commission to regulatory review program, under which promulgate rules regarding the it reviews rules and guides periodically during the initial implementation of the Act. As the Commission continued to disclosure of written warranty terms. in order to obtain information about the Accordingly, on December 31, 1975, the costs and benefits of the rules and publication in the Federal Register unless an Commission published in the Federal guides under review, as well as their agency finds good cause that the rule should Register (40 FR 60188) its Rule regulatory and economic impact. The become effective sooner. 5 U.S.C. 553(d). However, Governing Disclosure of Written information obtained assists the this is purely a clerical change and is not a Consumer Product Warranty Terms and Commission in identifying rules and substantive rule change. Therefore, the Commission finds good cause to dispense with a delayed Conditions. Rule 701 establishes guides that warrant modification or effective date. disclosure requirements for written rescission. After careful review of the 3 FTC, Auto Warranties & Routine Maintenance warranties on consumer products that comments received in response to the (July 2011, updated May 2015) (‘‘Consumer Alert on cost more than $15.00. It also specifies request, the Commission has Auto Warranties’’), available at http:// the aspects of warranty coverage that determined to retain Rules 701, 702, and www.consumer.ftc.gov/articles/0138-auto- warranties-routine-maintenance. A warrantor may must be disclosed in the written 703, and the Guides without change, condition the warranty on the use of certain parts document, as well as the exact language and to modify the Interpretations in or service if it provides these parts and services that must be used for certain disclosures §§ 700.10 and 700.11(a). The without charge to the consumer under the warranty, regarding state law on the duration of or alternatively, if the warrantor receives a waiver Commission is also updating the implied warranties and the availability citation format in the Interpretations from the Commission. See 15 U.S.C. 2302(c). 4 See FTC, .com Disclosures: How to Make of consequential or incidental damages. 2 and Rules. Effective Disclosures in Digital Advertising (2013), Under Rule 701, warranty information available at http://ftc.gov/os/2013/03/ must be disclosed in simple, easily 1 130312dotcomdisclosures.pdf. 76 FR 52596 (Aug. 23, 2011). understandable, and concise language in 2 These clerical changes do not involve any 5 Press Release, FTC, As Holiday Shopping substantive changes in the Rules’ requirements for Season Gets Underway, FTC Reminds Internet a single document. In promulgating entities subject to the Rules. Accordingly, the Retailers to Ensure Consumers Have Access to Rule 701, the Commission determined Commission finds that public comment is Warranty Information (Dec. 2, 2013), http:// that material facts about product unnecessary. See 5 U.S.C. 553(b)(3)(B). www.ftc.gov/news-events/press-releases/2013/12/ warranties, the nondisclosure of which In addition, under the APA, a substantive final holiday-shopping-season-gets-underway-ftc- rule is required to take effect at least 30 days after reminds-internet. would be deceptive or misleading, must

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be disclosed.6 In addition to specifying standards include, but are not limited 1. 16 CFR Part 700: Interpretations the information that must appear in a to, requirements concerning the IDSM’s a. Amend § 700.10 To Provide Further written warranty, Rule 701 also requires structure (e.g., funding, staffing, and Guidance on Prohibited Tying that, if the warrantor of a limited neutrality), the qualifications of staff or warranty uses a warranty registration or decision makers, and the IDSM’s Generally, the MMWA prohibits owner registration card, the warranty procedures for resolving disputes, warrantors from conditioning warranties on the consumer’s use of a replacement must disclose whether return of the recordkeeping, and annual audits. registration card is a condition product or repair service identified by precedent to warranty coverage.7 5. 16 CFR Part 239: Guides for the brand or name, unless the article or Advertising of Warranties and service is provided without charge to 3. 16 CFR Part 702: Pre-Sale Availability Guarantees the consumer or the warrantor has of Written Warranty Terms received a waiver.9 The Commission’s Section 2302(b)(1)(A) of the MMWA The Guides for the Disclosure of Interpretations illustrate this concept by directs the Commission to prescribe Warranties and Guarantees, codified in stating that phrases such as this rules requiring that the terms of any part 239, provide guidance concerning warranty is void if service is performed written warranty on a consumer product warranty and guarantee disclosures. Part by anyone other than an authorized be made available to the prospective 239 intends to help advertisers avoid ‘‘ABC’’ dealer and all replacement parts purchaser prior to the sale of the unfair and deceptive practices when must be genuine ‘‘ABC’’ parts and the product. Accordingly, on December 31, advertising warranties and guarantees. like, are prohibited unless the service or 1975, the Commission published Rule The 1985 Guides advise that parts are provided free of charge. Such 702. Rule 702 establishes requirements advertisements mentioning warranties provisions violate the MMWA’s ban on for sellers and warrantors to make the or guarantees should contain a tying arrangements and are deceptive text of any warranty on a consumer disclosure that the actual warranty under Section 5 of the FTC Act, because product available to the consumer prior document is available for consumers to a warrantor cannot avoid liability under a warranty where the defect or damage to sale. Among other things, Rule 702 read before they buy the advertised is unrelated to the consumer’s use of requires sellers to make warranties product. In addition, the Guides set readily available either by: (1) ‘‘unauthorized’’ parts or service. This forth advice for using the terms does not, however, preclude the Displaying the warranty document in ‘‘satisfaction guarantee,’’ ‘‘lifetime,’’ and close proximity to the product or (2) warrantor from denying warranty similar representations. Finally, the coverage for repairs associated with furnishing the warranty document on Guides advise that sellers or request and posting signs in prominent defects or damage caused by the use of manufacturers should not advertise that 10 locations advising consumers that the ‘‘unauthorized’’ parts or service. a product is warranted or guaranteed Several commenters 11 assert that the warranties are available. The Rule unless they promptly and fully perform Commission’s Interpretations do not requires warrantors to provide materials their warranty obligations. The Guides address the market realities of to enable sellers to comply with the manufacturers’ statements about the use Rule’s requirements, and also sets out are advisory in nature. of branded products. These commenters the methods by which warranty B. Analysis of the Comments on the state that automotive and other information can be made available prior Interpretations, Rule 701, Rule 702, consumer product manufacturers have to the sale if the product is sold through Rule 703, and the Guides employed language in consumer catalogs, mail order, or door-to-door materials ‘‘to suggest that warranty sales. As discussed further below, Rule Twenty-nine entities and individuals coverage directly or impliedly ‘requires’ 702 also applies to online sales. submitted public comments in response the use of a branded product or to the August 23, 2011 Federal Register service’’ 12 leading reasonable 4. 16 CFR Part 703: Informal Dispute 8 Settlement Procedures request for public comment. Comments consumers to believe that coverage generally reflect a strong level of under a written warranty will be void if Section 2310(a)(2) of the MMWA support for the view that the directs the Commission to prescribe the Interpretations, Rules, and Guides are 9 See 15 U.S.C. 2302(c). The Commission may minimum standards for any informal achieving the objectives they were waive this prohibition if the warrantor dispute settlement mechanism (‘‘IDSM’’ fashioned to achieve—i.e., to facilitate demonstrates to the Commission that the warranted product will function properly only if the article or or ‘‘Mechanism’’) that a warrantor, by the consumer’s ability to obtain clear, including a ‘‘prior resort’’ clause in its service so identified is used in connection with the accurate warranty information. A warranted product, and the waiver is in the public written warranty, requires consumers to majority of the commenters, though interest. 15 U.S.C. 2302(c). use before they may file suit under the 10 endorsing retention of the present 16 CFR 700.10. Act to obtain a remedy for warranty 11 Ashland; Automotive Oil Change Association; non-performance. Accordingly, on regulatory scheme, suggested Automotive Recyclers Association; BP Lubricants; December 31, 1975, the Commission modifications to the Interpretations, Certified Auto Parts Association; Hunton & Rules, and Guides, which they believe Williams; International Imaging Technology published Rule 703. Rule 703 contains Council; LKQ Corporation; Motor & Equipment extensive procedural safeguards for would provide greater consumer Manufacturers Association; Monro Muffler Brake; consumers that a warrantor must protections and minimize burdens on Property Casualty Insurers Association of America; firms subject to the regulations. and the Uniform Standards in Automotive Products incorporate in any IDSM. These Coalition (‘‘USAP Coalition’’). One commenter, the American Insurance Association, urges the 6 See 40 FR 60168, 60169 (Dec. 31, 1975) (‘‘The Commission not to change § 700.10. The Coalition items required for disclosure by this Rule are for Auto Repair Equality urges the Commission to 8 76 FR 52596 (Aug. 23, 2011). Public comments material facts about warranties, the non-disclosure uphold MMWA’s tying prohibitions. Grandpa’s of which constitutes a deceptive practice.’’). in response to the Commission’s 2011 FRN are Garage comments that GM’s recommendation that 7 Notably, section 2014(b)(1) of the MMWA located at http://www.ftc.gov/policy/public- consumers use its branded oil is helpful because prohibits warrantors offering a full warranty from comments/initiative-392. Comments cited herein to GM explains the right products to use for repair and imposing duties other than the notification of a the Federal Register notice are designated as such, the prevention of premature failure. Consumer J. defect as a condition of securing warranty remedies. and are identified by commenter name, and, where McKee generally supports the tying prohibitions. 15 U.S.C. 2304(b)(1). applicable, page number. 12 USAP Coalition at 6.

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non-original parts or non-dealer services grounds for the claims. If the advertiser was caused by the use of unauthorized are utilized.13 Commenters suggest that does not, the consumer is acting under articles or services.’’ 24 Commenters these statements lead consumers to a false impression. The consumer might base their recommendation, in part, on doubt the viability of non-original (or have perceived the advertising the language mandated by the Clean Air recycled) parts.14 ‘‘Faced with such a differently had he or she known the Act for use in user manuals, namely, choice a consumer is likely to use the advertiser had no basis for the claim.’’ 20 that ‘‘maintenance, replacement, or ‘required’ product in order to avoid the A warrantor claiming or suggesting that repair of the emissions control devices risk that they may later face potentially a warranty is void simply because a and systems may be performed by any expensive repairs that may not be consumer used ‘‘unauthorized’’ parts or automotive repair establishment or covered under their warranty, resulting service would have no basis for such a individual using any automotive in a ‘tie’ created via warranty.’’ 15 claim (absent a Commission waiver part.’’ 25 Accordingly, these commenters request pursuant to Section 2302(c) of the Act). The Commission declines to make that the Commission ‘‘make clear that This is consistent with staff’s view, as this change. As an initial matter, the warranty language that creates the expressed in recent opinion letters, that MMWA, unlike the Clean Air Act, does impression that the use of a branded misinformation and misleading not require a mandatory disclaimer on product or service is required in order statements in conjunction with warranty all warranties. Further, the current to maintain warranty coverage is . . . coverage may be actionable.21 record lacks sufficient evidence to impermissible.’’ 16 Therefore, to clarify the tying justify the imposition of a mandatory The MMWA incorporates principles prohibition of the MMWA, § 700.10(c) warranty disclosure requirement for a under Section 5 of the FTC Act that will be changed as described in subset of warrantors.26 prohibit warrantors from disseminating amendatory instruction 11. c. Clarify That Use of an Aftermarket or deceptive statements concerning Recycled Component is Not a Prima warranty coverage. The MMWA gives b. Require a Mandatory Disclosure Facie Justification for Warranty Denial the Commission the authority to restrain Statement in Companies’ Warranties a warrantor from making a deceptive Several commenters 22 ask the One commenter 27 asks the warranty, which is defined as a Commission to mandate that warrantors Commission to clarify that the use of warranty that ‘‘fails to contain providing a warranty to a consumer in aftermarket components is not a prima information which is necessary in light connection with a motor vehicle facie justification for warranty denial. of all of the circumstances, to make the incorporate standard language in their The Interpretations and related warranty not misleading to a reasonable warranties, akin to the FTC’s Consumer educational materials already make individual exercising due care.’’ 17 Alert on Auto Warranties.23 These clear that the mere use of an aftermarket Thus, a warrantor would violate the commenters state that, although the (or recycled) component alone is not a MMWA if its warranty led a reasonable FTC’s Consumer Alert on Auto sufficient justification for warranty consumer exercising due care to believe Warranties informs consumers of their denial. As discussed above, a warrantor that the warranty conditioned coverage rights under the MMWA, consumers cannot disclaim warranty coverage if a ‘‘on the consumer’s use of an article or should receive information about these defect or damage is unrelated to the service identified by brand, trade or rights in an owner’s manual or warranty consumer’s use of ‘‘unauthorized’’ corporate name unless that article or document pursuant to a Commission- products or service, unless the service is provided without charge to mandated disclosure. These warrantor provides the service or part the consumer.’’ 18 commenters ask the Commission to without charge under the warranty or 28 Moreover, misstatements leading a amend its Interpretations so that these receives a Commission waiver. A consumer to believe that the consumer’s warrantors would be required to provide warrantor can refuse coverage where the warranty is void because a consumer in boldface type on the first page of a warrantor can demonstrate that the used ‘‘unauthorized’’ parts or service defect or damage was caused by the use written automobile warranty: ‘‘Warranty 29 may also be deceptive under Section 5 coverage cannot be denied unless the of the ‘‘unauthorized’’ part or service. 19 Several commenters ask the of the FTC Act. Specifically, claims by warrantor or service provide[r] [sic] can Commission to better educate a warrantor that create a false demonstrate that the defect or damage impression that a warranty would be consumers on how to identify and report warranty tying in the void due to the use of ‘‘unauthorized’’ 20 FTC Policy Statement on Deception, supra note parts or service may constitute a 19 at n14; see also 15 U.S.C. 2310(c)(2). marketplace. In July 2011, the staff deceptive practice as outlined in the 21 Consumer Alert on Auto Warranties, supra FTC Policy Statement on Deception: note 3. 24 USAP Coalition at 14. Elsewhere, however, the ‘‘The deception theory is based on the 22 Ashland at 3; Automotive Oil Change commenters propose other specific language for the Association at 2; Certified Automotive Parts Commission to add to its Interpretations that would fact that most ads making objective Association at 2–3; International Imaging not be limited to mandatory disclosures in warranty claims imply, and many expressly state, Technology Council at 6–7; LKQ Corporation at 10; documents but would extend to owner’s manuals that an advertiser has certain specific Monro Muffler Brake at 1–2; USAP Coalition at and other communications with prospective 14–15. consumers. USAP Coalition at 20, Att. B; Automotive Oil Change Association at 6 (referring 23 The Consumer Alert on Auto Warranties 13 Hunton & Williams at 4. to ‘‘warranty documents and related informs consumers, among other things, that unless 14 Automotive Recyclers Association at 2. communications.’’). they have been provided parts or services without 15 Id. 25 charge under the warranty, they do not have to use USAP Coalition at 14, citing 42 U.S.C. 16 USAP Coalition at 3. the dealer for repairs and maintenance to keep their 7541(c)(3)(A). 17 15 U.S.C. 2310(c). warranty in effect, stating, ‘‘An independent 26 The Specialty Equipment Market Association 18 16 CFR 700.10. mechanic, a retail chain shop, or even you yourself (‘‘SEMA’’) asks the Commission to prepare a 19 15 U.S.C. 45(a). See generally Letter from James can do routine maintenance and repairs on your supplemental consumer alert to specifically C. Miller III, Chairman, Fed. Trade Comm’n, et al., vehicle. In fact, the Magnuson-Moss Warranty Act, reference ‘‘specialty parts.’’ SEMA at 2. A to Rep. John D. Dingell (Oct. 14, 1983), reprinted which is enforced by the FTC, makes it illegal for supplemental consumer alert is not necessary as the in Cliffdale Assocs., Inc., 103 F.T.C. 110, 174 manufacturers or dealers to claim that your existing consumer alert applies to all non-original (1984), available at https://www.ftc.gov/public- warranty is void or to deny coverage under your (or recycled) parts. statements/1983/10/ftc-policy-statement-deception warranty simply because someone other than the 27 Ashland at 2. (hereinafter ‘‘FTC Policy Statement on Deception’’) dealer did the work.’’ Consumer Alert on Auto 28 16 CFR 700.10(c). at 2. Warranties, supra note 3. 29 Id.

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issued a consumer alert highlighting caused defects or damage to the perform under the service contract.40 MMWA’s tying prohibitions. The alert consumer’s vehicle by, for example, The Commission declines to add the explained: ‘‘Simply using an aftermarket giving consumers a copy of a service requested interpretation. or recycled part does not void your bulletin or just ‘‘say[ing] so.’’ 35 Existing staff guidance provides that warranty. The Magnuson-Moss Commenters therefore ask the ‘‘sellers of consumer products that Warranty Act makes it illegal for Commission to require, in its merely sell service contracts as agents of companies to void your warranty or Interpretations, that warrantors provide service contract companies and do not deny coverage under the warranty consumers with a written statement to themselves extend written warranties’’ simply because you used an aftermarket support any warranty denial claim. do not ‘‘enter into’’ service contracts.41 or recycled part.’’ 30 The Commission does not believe a This guidance parallels the MMWA’s change is warranted because the current d. Require That Warrantors Have provisions concerning a seller’s liability record lacks sufficient evidence under the MMWA for merely selling a Substantiation for Their Performance showing that warrantors routinely deny Claims Regarding Non-Original Parts third party’s warranty: ‘‘only the warranty coverage orally without warrantor actually making a written Several commenters 31 ask the demonstrating to the consumer that the affirmation of fact, promise, or Commission to require that warrantors ‘‘unauthorized’’ part or service caused undertaking shall be deemed to have have substantiation for their claims that damage to the vehicle. At this time, the created a written warranty, and any original equipment manufacturer Commission believes the existing rights arising thereunder may be (‘‘OEM’’) parts work better than non- Interpretations adequately address this enforced under this section only against original or recycled parts. This specific issue. such warrantor and no other person.’’ 42 request is outside the purview of the Act Simply providing a consumer with a In keeping with the MMWA, the and relates generally to the requirement copy of a service bulletin or denying Commission’s Interpretations under Section 5 of the FTC Act that coverage with a bald, unsupported concerning parties ‘‘actually making’’ a companies have sufficient basis for their statement that the ‘‘unauthorized’’ parts written warranty provide that a supplier claims. Section 5 requires warrantors or service caused the vehicle damage who simply distributes or sells a making performance claims regarding would be insufficient under the consumer product warranted by another non-original or recycled parts to have a Commission’s existing Interpretations. person or business is not liable for reasonable basis for those claims, Warrantors must have a basis for failure of the written warranty to thereby ensuring that such claims are warranty denials by demonstrating to comply with the Act.43 Accordingly, the not unfair, deceptive, false, or consumers that the use of Commission will not add the requested misleading. Similarly, advertisers must ‘‘unauthorized’’ parts or service caused interpretation concerning service have adequate substantiation—or a the defect or damage to the vehicle. contracts. reasonable basis—for any advertising Further, denying warranty coverage by The second commenter, the Center for claims they make before the claims are simply pointing to a service bulletin Auto Safety, seeks clarity to address the disseminated. Under the substantiation that informs consumers that only discrepancy it perceives between the doctrine, ‘‘firms lacking a reasonable ‘‘authorized’’ parts or service should be MMWA and the staff’s guidance basis before an ad is disseminated used to maintain warranty coverage may concerning the circumstances under 32 violate Section 5 of the FTC Act.’’ also violate the MMWA’s proscriptions which an auto dealer (i.e., supplier) can against tying.36 Therefore, whether the e. Require Warranty Denial To Be in disclaim implied warranties when demonstration is in writing or oral, a Writing offering service contracts. It argues that, warrantor denying warranty coverage The Commission’s Interpretations on one hand, Section 2308(a)(2) of the due to the use of ‘‘unauthorized’’ parts MMWA states: ‘‘no supplier may state that a warrantor is not precluded or service must show that such use from denying warranty coverage for disclaim or modify . . . any implied caused the defect or damage to the warranty to a consumer with respect to defects or damage caused by the use of vehicle. ‘‘unauthorized’’ parts or service if the such consumer product if . . . at the warrantor ‘‘demonstrates’’ that the f. The Scope of Auto Dealers’ time of sale, or within 90 days ‘‘unauthorized’’ parts or service caused Responsibilities Under the MMWA and thereafter, such supplier enters into a a defect or damage to the vehicle.33 Interpretations service contract with the consumer Commenters 34 state that, in some 37 which applies to such consumer Two commenters address the scope 44 instances, warrantors have denied of auto dealers’ (which fall under product.’’ On the other hand, the warranty coverage without sufficiently MMWA’s definition of ‘‘supplier’’ 38) FTC’s Businessperson’s Guide to demonstrating to consumers that the use responsibilities under the MMWA and Federal Warranty Law states: ‘‘[s]ellers of ‘‘unauthorized’’ parts or service Interpretations.39 First, the National of consumer products who make service Consumer Law Center (‘‘NCLC’’) asks contracts on their products are 30 See Consumer Alert on Auto Warranties, supra the Commission to add an interpretation 40 note 3. As stated in the updated consumer alert, the stating that a supplier enters into a NCLC at 10. manufacturer or dealer can, however, require 41 See FTC, The Businessperson’s Guide to consumers to use select parts if those parts are service contract with a consumer Federal Warranty Law, available at http:// provided to consumers free of charge under the whenever the supplier offers a service www.business.ftc.gov/documents/bus01- warranty. contract to the consumer, irrespective of businesspersons-guide-federal-warranty-law; 15 31 Ashland at 6–7; LKQ Corporation at 8; USAP whether the supplier is obligated to U.S.C. 2308(a)(2). Coalition at 15–16. 42 15 U.S.C. 2310(f). 32 FTC Policy Statement Regarding Advertising 43 16 CFR 700.4. Section 700.4 further provides, 35 Substantiation, appended to Thompson Med. Co., Certified Auto Parts Association at 5. however, that other actions and written and oral 104 F.T.C. 648, 839 (1984), aff’d, 791 F.2d 189 (D.C. 36 16 CFR 700.10(c). representations of such a supplier in connection Cir. 1986). 37 Center for Auto Safety at 2; NCLC at 10. with the offer or sale of a warranted product may 33 16 CFR 700.10(c). 38 The MMWA defines ‘‘supplier’’ as ‘‘any person obligate that supplier under the Act. If under State 34 Ashland at 3; Automotive Oil Change engaged in the business of making a consumer law the supplier is deemed to have ‘‘adopted’’ the Association at 6–7; BP Lubricants at 3, Certified product directly or indirectly available to written affirmation of fact, promise, or undertaking, Auto Parts Association at 4–5; SEMA at 3; USAP consumers.’’ 15 U.S.C. 2301(4). the supplier is also obligated under the Act. Coalition at 15–16. 39 Center for Auto Safety at 2. 44 15 U.S.C. 2308(a)(2).

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prohibited under the Act from g. Apply Rules to Leases And Define h. Certain 50/50 Warranties Should Be disclaiming or limiting implied ‘‘Lease’’ Interpreted To Violate the Act’s Anti- warranties. . . . However, sellers of NCLC urges the Commission to Tying Prohibition consumer products that merely sell amend § 700.10 to clarify that the NCLC urges the Commission to service contracts as agents of service MMWA covers consumer leases.52 The reconsider its 2002 opinion letter 59 contract companies and do not majority of courts have found that a finding ‘‘50/50 warranties’’ permissible themselves extend written warranties lessee meets the definition of can disclaim implied warranties on the ‘‘consumer’’ in the MMWA because under the Act. Fifty/fifty warranties are products they sell.’’ 45 warranty rights are transferred to lessees those where the dealer promises to pay The Commission does not believe any or the lessees are permitted to enforce 50% of the labor costs and 50% of the discrepancy exists. The confusion may the contract under state law, among parts cost, and the consumer pays the stem from the usage of the word other reasons.53 As NCLC notes, remainder. NCLC argues that allowing ‘‘supplier,’’ defined in the MMWA as: however, some courts have held that a the warrantor to choose the repairs or ‘‘any person engaged in the business of lessee does not meet the definition of parts is contrary to the goals of the making a consumer product directly or ‘‘consumer.’’ These courts have MMWA, and leads to monopolistic indirectly available to consumers.’’ 46 generally found that the definition of pricing practices and a decrease in Thus, ‘‘supplier’’ can mean either the ‘‘consumer’’ presupposes a transaction competition.60 entity that ‘‘enters into a service that qualifies as a sale under the Act, Although the Commission found that contract with the consumer’’ or the and that the lease transaction at issue 50/50 warranties may violate the Act in entity that ‘‘merely sells’’ a third-party’s was not a qualifying sale.54 NCLC certain circumstances in its 1999 rule service contract, without more. The therefore asks the Commission to add a review, in 2002, the Commission latter, as explained previously,47 has not new Interpretation, as § 700.13, titled, clarified its position on 50/50 entered into a service contract with the ‘‘consumer leases,’’ to provide explicitly warranties. The Commission stated that consumer, and therefore Section that the Act applies to consumer the Act prohibits warrantors from 55 2308(a)(2) would not apply.48 leases. conditioning their warranties on the use The Commission does not agree with Suppliers, however, are not immune of branded parts or service where the the view held by a minority number of from liability. If a supplier sells a warranted articles or services are courts that lessees cannot be a service contract that obligates it to ‘‘severable from the dealer’s ‘‘consumer’’ under the MMWA because 61 perform under the contract, it will be each prong of the ‘‘consumer’’ responsibilities under the warranty.’’ deemed to have entered into the service definition 56 presupposes a sale to the Therefore, when a warranty covers only contract within the meaning of the end-consumer (which in this case is a replacement parts, and the consumer statute. In addition, suppliers who lessee). Rather, as the majority of courts pays the labor charges, the warrantor extend service contracts utilizing have held, lessees meet the definition of cannot mandate specific service or labor misrepresentations or material a ‘‘consumer’’ because warranty rights to install those parts. Conversely, when omissions may be subject to liability are either transferred to lessees or the a warranty covers only labor charges, under the MMWA and Section 5 of the lessees are permitted to enforce the and the consumer pays for parts, the 49 FTC Act. contract under state law.57 Given that a warrantor cannot mandate the use of Enforce the Act majority of courts hold that the MMWA specific parts. With 50/50 warranties, applies to certain leases, consistent with however, ‘‘the warranting dealer has a Commenters 50 encourage the past agency guidance,58 a new direct interest in providing the warranty Commission to enforce the MMWA. The Interpretation is not necessary. service for which it is partly financially Commission enforces the Act by responsible. . . . Rather than monitoring consumer complaints, 52 NCLC at 3. conditioning the warranty on the reviewing audit reports, advising 53 See, e.g., Voelker v. Porsche Cars N. Am., Inc., purchase of a separate product or warrantors of their obligations, 353 F.3d 516 (7th Cir. 2003); Mago v. Mercedes- service not covered by the warranty, a Benz, U.S.A., Inc., 142 P.3d 712 (Ariz. Ct. App. educating consumers and businesses, 2006); Am. Honda Motor Co. v. Cerasani, 955 So.2d 50/50 warranty shares the cost of a and taking enforcement action where 543 (Fla. 2007). single product or service.’’ 62 For that appropriate.51 54 See, e.g., Stark v. Maserati N. Am., Inc., 2010 reason, the warrantor needs some WL 4916981 (E.D.N.Y. Oct. 13, 2010); DiCintio v. DaimlerChrysler Corp., 768 NE.2d 1121 (N.Y. 2002). control over the repair needed and 45 The Businessperson’s Guide to Federal 63 55 NCLC at 5. quality of repair. The Commission has Warranty Law, supra note 41. 56 15 U.S.C. 2301(3) (‘‘The term ‘consumer’ means decided to retain its 2002 position on 46 15 U.S.C. 2301(4). a buyer (other than for purposes of resale) of any 50/50 warranties. The Commission has 47 The Businessperson’s Guide to Federal consumer product, any person to whom such reviewed the issue and believes that its Warranty Law, supra note 41. product is transferred during the duration of an 48 15 U.S.C. 2308(a)(2). implied or written warranty (or service contract) 2002 interpretation continues to be 49 15 U.S.C. 2306(b) (requiring warrantors and applicable to the product, and any other person correct. suppliers to clearly and conspicuously disclose who is entitled by the terms of such warranty (or service contract terms and conditions); 15 U.S.C. service contract) or under applicable State law to 45. enforce against the warrantor (or service contractor) consideration, upon full compliance with his obligations under the lease.’’). 50 LKQ Corp. at 1 and 5; Motor & Equipment the obligations of the warranty (or service 59 Manufacturers Association at 2–3. contract).’’). NCLC at 6–7, citing Letter from Donald S. Clark to Keith E. Whann (Dec. 2, 2002), available at 51 See, e.g., Compl., BMW of N. Am., LLC, File No. 57 See, e.g., supra note 53. http://www.ftc.gov/system/files/documents/ 132 3150, available at https://www.ftc.gov/system/ 58 The agency has provided similar guidance. See advisory_opinions/national-independent- files/documents/cases/150319bmwcmpt.pdf (Fed. Advisory Opinion from Rachel Dawson to Raymond automobile-dealer-association/clark_to_whann_ Trade Comm’n March 19, 2015); Consumer Alert on Asher (June 10, 1976) (‘‘A leased product would be letter.pdf. Auto Warranties, supra note 3. Consumers or covered if the lease is essentially equivalent to a 60 businesses may file complaints with the sale. For example, a product would be covered if NCLC at 6. Commission online through https:// the total compensation to be paid by the lessee is 61 Letter from Donald S. Clark to Keith E. Whann www.ftccomplaintassistant.gov or by calling the substantially equivalent to or in excess of the value (Dec. 2, 2002), supra note 59. Commission’s toll-free number, 1–877–FTC–HELP of the product, and the lessee will own the product, 62 Id. at 2. (1–877–382–4357). or has an option to buy it for a nominal 63 Id.

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i. The Commission’s Interpretation The Commission agrees that the The Commission received six comments Under § 700.11(a) Conflicts With the McCarran-Ferguson Act’s ‘‘invalidate, on this issue: four commenters urge the McCarran-Ferguson Act and Supreme impair, or supersede’’ standard is Commission not to add specific service- Court Precedent applicable to the MMWA. The contract disclosure requirements, while Commission will revise the two commenters take the opposite NCLC asserts that the Commission has Interpretation as described in view.74 The four opponents of incorrectly interpreted the meaning of amendatory instruction 12. disclosure rules for service contracts the McCarran-Ferguson Act in state that service contracts are different 64 j. Amend Definition of ‘‘Consumer § 700.11(a). The McCarran-Ferguson from warranties in that they do not form Product’’ Act provides that ‘‘[n]o Act of Congress the basis of the bargain. They argue that shall be construed to invalidate, impair, SEMA asks the Commission to amend no federal regulation is needed because or supersede any law enacted by any the definition of ‘‘consumer product’’ to states already regulate service contracts State for the purpose of regulating the include specialty equipment.71 The and adding federal regulation to the mix business of insurance, or which imposes Commission has determined that no would create unnecessary burdens to a fee or tax upon such business, unless definitional change is warranted both the industry and to federal and such Act specifically relates to the because specialty equipment is already state governments.75 business of insurance: Provided, That covered by the definition of ‘‘consumer On the other hand, two commenters, . . . the Sherman Act, . . . the Clayton product.’’ ‘‘Consumer product’’ is Mr. Evan Johnson and NCLC, argue that Act, and . . . the Federal Trade defined as ‘‘any tangible personal the Commission should amend the Commission Act . . . shall be property which is distributed in Rules to prescribe the manner and form applicable to the business of insurance commerce and which is normally used in which service-contract terms are to the extent that such business is not for personal, family, or household disclosed. Mr. Johnson argues that regulated by State Law.’’ 65 Section purposes.’’ 72 service contracts have been a ‘‘huge 700.11 states that agreements regulated 2. 16 CFR Part 701: Disclosure of Terms source’’ of consumer complaints. ‘‘Many by state law as insurance are subject to and Conditions (Rule 701) of these complaints concern marketing the MMWA ‘‘only to the extent they are but many also arise from the unclear not regulated in a particular state as the a. Regulate Service Contract Disclosures wording and structure of the 66 business of insurance.’’ The request for public comment contracts.’’ 76 NCLC provides two NCLC states that the Interpretation is specifically asked whether the reasons why the Commission should inconsistent with both the McCarran- Commission should amend the Rules to specifically regulate service contracts. Ferguson Act and Supreme Court cover service-contract disclosures.73 First, the reasons for mandatory precedent.67 First, NCLC argues that disclosure requirements for warranties because the MMWA is not one of the 71 SEMA at 2. Specialty equipment includes apply equally to service contracts; three enumerated statutes (the Sherman performance, functional, restoration and styling- regulating one and not the other makes Act, Clayton Act or the FTC Act), the enhancement products for use on passenger cars little sense.77 Second, service contracts and light-duty trucks. Id. at 1. correct standard is the standard 72 16 CFR 701.1(b). or re-fillers of consumables, such as ink and toner, applicable to all other federal statutes. 73 The Association of Home Appliance must include a marking prominently displayed on In other words, the MMWA can regulate Manufacturers (‘‘AHAM’’) asks for additional the consumable that clearly directs the end user to changes to Rule 701. First, AHAM asks the the business of insurance so long as it contact the party that remanufactured the Commission to amend Rule 701.3 by adding that does not ‘‘invalidate, impair, or consumable (or its designee) for all warranty claims any warrantor complying with the Rule is entitled and information. Steinborn at 2. However, Rule 701 supersede’’ state law. Therefore, even if to a presumption in any breach of warranty already requires that warranty terms include a step- a state regulates a service agreement as litigation that the warranty is not unconscionable, by-step explanation of the procedure which the deceptive, or misleading. AHAM at 2. It argues that the business of insurance, the MMWA consumer should follow in order to obtain consumers file hundreds of class actions each year may still apply.68 Second, NCLC asserts performance of any warranty obligation. 16 CFR asking courts to invalidate or modify the terms of 701.3(a)(5). For this reason, the Commission has the Commission’s Interpretation is a written warranty. Id. Although Rule 701.3 sets out chosen not to incorporate the specific change contrary to Supreme Court precedent, minimum federal disclosure requirements for advocated by Mr. Steinborn. consumer product warranties, warrantors must also Humana v. Forsyth, 525 U.S. 299 (1999). 74 Opponents of federal service-contract There, the Supreme Court held that follow the proscriptions of Section 5 of the FTC Act, prohibiting unfair and deceptive practices, and disclosure regulations are the AHAM, Florida states’ regulation of insurance fraud various applicable state laws. Because there are Service Agreement Association, Service Contract would not displace remedies under other laws governing unfairness or deception in Industry Council, and Property Casualty Insurers federal law for the same misconduct warranties, the Commission does not believe it Association of America. Mr. Johnson and NCLC would be appropriate to create a new provision in support the Commission’s promulgation of service- because they do not ‘‘impair the contract disclosure regulations. 69 the Warranty Rules specifying that warrantors insurance regulatory scheme.’’ complying with Rule 701.3 are entitled to a 75 See Florida Service Agreement Association at Consequently, NCLC states, ‘‘even presumption that their warranties are not 2–3; Service Contract Industry Council at 2–3. For though state insurance law provides a unconscionable, deceptive, or misleading. Second, example, the Service Contract Industry Council states that thirty-five states specifically regulate remedial scheme for breach of a service AHAM asks the Commission to amend Rule 701.3 by adding that a warrantor can exclude any latent service contracts on consumer goods, thirty-five contract regulated as insurance, the defects that may manifest after the written warranty states regulate service contracts on homes, and additional availability of Magnuson- period expires. Id. at 3. AHAM asserts that many thirty-eight states regulate service contracts on Moss remedies for the same misconduct lawsuits seek to expand or modify the express motor vehicles. Commenters assert that many of warranty’s terms after sale, and beyond the these state laws provide greater protection to does not ‘impair’ the insurance consumers than the MMWA by, for example, 70 contractually-limited time period, to cover an regulatory scheme.’’ alleged latent defect that manifests itself post- ‘‘ensuring that service contract obligors are warranty period. However, Rule 701.3 focuses on financially sound and that their obligations to consumers are secure.’’ Because the MMWA 64 NCLC at 9. disclosure requirements for consumer product preempts state warranty law unless the state law 65 15 U.S.C. 1012(b). warranties. It requires the disclosure of several items of material information in a clear and ‘‘affords protection to consumers greater than the 66 16 CFR 700.11(a). conspicuous manner. Rule 701.3 does not mandate requirement of Magnuson-Moss,’’ these commenters 67 NCLC at 8–9. specific warranty coverage. Nor does the Rule itself argue that additional federal regulations may have 68 Id. at 8. cover post-warranty conduct. Therefore, no change little practical effect. 69 Id. at 9. is warranted. Mr. Steinborn asks the Commission to 76 Johnson at 4. 70 Id. modify Rule 701 so that third-party manufacturers 77 NCLC at 12.

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are widely sold and expensive, and One commenter noted at the outset that The Commission however, does not consumers have little information Rule 702 ‘‘continues to be very agree with the view endorsed by concerning costs, coverage, and claims important to consumers. Consumers are commenters 88 that offline sellers can process.78 very aware of warranties and use comply with the pre-sale availability The Commission does not believe warranty differences as a basis for rule by advising buyers of the such a rule amendment is needed choosing a product. The current rule is availability of warranties on the because the MMWA and Section 5 a reasonable and cost-effective approach warrantor’s Web site. The intent of the already require that warrantors, to providing the information.’’ 83 Rule is to make warranty information suppliers, and service contract Three commenters ask the available at the point of sale. For brick providers clearly and conspicuously Commission to specifically reference and mortar transactions, the point of disclose service contract terms and Internet sales in Rule 702 and provide sale is in the store; for online conditions. Section 2306(b) of the Act additional guidance on how retailers transactions, the point of sale is where provides: ‘‘[n]othing in this chapter can comply with the Rule by referring consumers purchase the product online. shall be construed to prevent a supplier consumers to warrantors’ Web sites.84 The Commission agrees with the or warrantor from entering into a service Although Rule 702 does not explicitly commenter who notes: ‘‘Internet contract with the consumer in addition mention online commerce, it applies to availability, however, is not a substitute to or in lieu of a written warranty if the sale of warranted consumer for availability as specified in Rule 702 such contract fully, clearly, and products online. Staff recently updated because many consumers make little or conspicuously discloses its terms and the .Com Disclosures to provide no use of the internet, while those who conditions in simple and readily additional guidance on disclosure do still need the information at the understood language.’’ 79 In addition, obligations in the online context. As point of sale as a fallback for when they Section 5 prohibits service contract stated in the updated .Com Disclosures, haven’t obtained the information online providers from failing to clearly and warranties communicated through or when they want to verify that their conspicuously disclose material terms visual text online are no different than online information is accurate.’’ 89 and conditions or otherwise deceiving paper versions and the same rules In sum, because Rule 702 already consumers with respect to the scope and apply.85 Online sellers of consumer covers the sale of consumer products nature of service contracts. This is in products can easily comply with the online, and because staff has updated its accord with the Businessperson’s pre-sale availability rule in a number of .Com Guidance concerning compliance Guidance to the MMWA: ‘‘If you offer ways. Online sellers can, for example, with pre-sale obligations online, the a service contract, the Act requires you use ‘‘a clearly-labeled hyperlink, in Commission has chosen not to engage in to list conspicuously all terms and close conjunction to the description of additional rulemaking as to Rule 702 at conditions in simple and readily the warranted product, such as ‘get this time. understood language.’’ 80 The warranty information here’ to lead to the Commission has issued a number of full text of the warranty.’’ 86 4. Rule 703—Informal Dispute consumer education pieces on service As with other online disclosures, Settlement Procedures contracts and extended warranties and warranty information should be The Commission’s request for public will take action where warranted.81 displayed clearly and conspicuously. comment specifically asked whether it Therefore, for example, warranty terms 3. 16 CFR Part 702: Pre-Sale Availability should change Rule 703, and if so, how. buried within voluminous ‘‘terms and Rule (Rule 702) Six commenters submitted responses to conditions’’ do not satisfy the Rule’s this question.90 At the outset, Generally, under Rule 702, sellers requirement that warranty terms be in commenters highlighted the importance who offer written warranties on close proximity to the warranted of the Rule in serving as a standard for consumer products must include certain product. Further, general references to IDSMs in general, and more specifically, information in their warranties and warranty coverage, such as ‘‘one year in providing a benchmark for state make them available for review at the warranty applies,’’ are also not lemon law IDSMs and certification point of purchase. The Commission’s sufficient.87 programs for IDSMs. Many states’ request for public comment asked criteria focus on the IDSM’s compliance whether the Commission should amend the Rule to permit private actions for violations of with Rule 703’s provisions. Therefore, Rule 702 to specifically address making Rule 702. However, the MMWA already provides a commenters stressed that any repeal or warranty documents accessible online. private cause of action to any consumer ‘‘who is damaged by the failure of a supplier, warrantor, or change to Rule 703 will also affect state The Commission received seven service contractor to comply with any obligation’’ 91 82 lemon law and certification programs. comments on this specific question. under the MMWA. 15 U.S.C. 2310(d)(1). Notwithstanding this fact, some 83 Johnson at 2. commenters ask the Commission to 78 Id. 84 AHAM at 3; National Independent Automobile 79 15 U.S.C. 2306(b). Dealers Association at 2; Steinborn at 2–3. The change certain elements of the Rule, 80 The Businessperson’s Guide to Federal Center for Auto Safety recommends that Rule 702.3 Warranty Law, supra note 41. point of sale requirements be maintained and to inform them of their obligations. http:// 81 See, e.g., FTC, Auto Service Contracts and enforced, requiring hard copy warranty materials to www.ftc.gov/opa/2013/12/warningletters.shtm Warranties, http://www.consumer.ftc.gov/articles/ be available at physical retail locations, not on CD 88 AHAM at 4–5; see also Steinborn at 2 (‘‘Where 0054-auto-service-contracts-and-warranties; see or DVD. Staff’s guidance allows warranties to be manufacturers and resellers have Internet also FTC v. Voicetouch, Civ. No. 09CV2929 (N.D. available on CDs and DVDs, but does not allow presences, click-through access to and/or a Ill., filed May 13, 2009) (action involving deceptive sellers to meet their pre-sale obligations by referring conspicuous reference to the manufacturers’ Web telemarketing of extended auto warranties); FTC v. consumers to CDs or DVDs that are not readily site containing the applicable warranty should be Transcontinental Warranty, Inc., Civ. No. accessible at the point of sale. See Letter from recognized as sufficient means for sellers to meet 09CV2927 (N.D. Ill., filed May 13, 2009) (same). The Allyson Himelfarb to Thomas M. Hughes (Feb. 17, the requirements of 702.’’). Commission will continue to examine service 2009), available at http://www.ftc.gov/bcp/ 89 Johnson at 2. contract disclosures. warranties/opinion0901.pdf. 90 AHAM at 6; Center for Auto Safety at 1; 82 AHAM at 3; Center for Auto Safety at 2; 85 See .com Disclosures, supra note 4, at 3, n7. Johnson at 3; International Association of Lemon Eisenberg at 1; Johnson at 2–3; National Automobile 86 Id. Law Administrators at 1; NCLC at 14–15; Nowicki Dealers Association at 2; National Independent 87 FTC Staff has found several instances in which at 1–2. Automobile Dealers Association at 2; Steinborn at online sellers have not fully complied with the pre- 91 See International Association of Lemon Law 2–3. Ms. Eisenberg asks the Commission to amend sale availability rule and has contacted these sellers Administrators at 1.

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including the Mechanism’s procedure, the auditor that the Mechanism selects. dispute.’’ 103 This provision ‘‘implicitly record-keeping, and audit requirements, For example, Rule 703.3(b) requires the permits Mechanisms to require and also reassess the Commission’s warrantors and sponsors of IDSMs to consumers to provide the Mechanism position on binding arbitration clauses take all necessary steps to ensure that with information ‘reasonably necessary’ in warranty contracts. These comments the Mechanism, and its members and to decide the dispute.’’ 104 When are discussed below. Overall, the staff, are sufficiently insulated from the adopting the final Rule in 1975, the Commission leaves Rule 703 warrantor and the sponsor, so that the Commission noted the Rule’s ‘‘intent is unchanged. members’ and staff’s decisions and to avoid creating artificial or performance are not influenced by unnecessary procedural burdens so long a. Modify the IDSM Procedures either the warrantor or the sponsor.97 as the basic goals of speed, fairness and AHAM claims that the procedures The Rule imposes minimum criteria in independent participation are met.’’ 105 prescribed in Rule 703 are difficult to this regard: (1) Committing funds in Therefore, because the Mechanism must follow and implement.92 It urges the advance; (2) basing personnel decisions have some flexibility in deciding the Commission to simplify the procedures solely on merit; and (3) not assigning information necessary for it to make a so they would be ‘‘more easily and conflicting warrantor or sponsor duties determination, the Commission will widely implemented by warrantors.’’ 93 to the Mechanism.98 Additional retain Rule 703.5 unchanged. The It further asserts that ‘‘a change would safeguards for impartiality are set forth Commission encourages, however, open benefit consumers, businesses, and in Rule 703.4 governing qualification of dialogue between industry groups and courts by streamlining the dispute members. the BBB to address any remaining resolution procedure and, thereby, As to auditors’ impartiality, although concerns.106 reducing the burden on state and federal the Mechanism may select its own auditor, Rule 703.7(d) provides that d. Mechanism’s Decisions as Non- courts of adjudicating some warranty Binding disputes, as many more could be ‘‘[n]o auditor may be involved with the handled through informal, but Mechanism as a warrantor, sponsor or The Commission received three structured proceedings.’’ 94 AHAM does member, or employee or agent thereof, comments concerning Rule 703.5(j)’s not proffer any specific changes that other than for purposes of the audit.’’ 99 provision prohibiting binding should be made, or provide examples of Further, IDSM audits have found ‘‘no arbitration provisions in warranty why the procedures described in Rule situation of conflict or circumstance contracts.107 AHAM urges the 703 are difficult to follow. As the which might give rise to an impression Commission to delete this provision Commission stated in 1975 when that [a conflict of interest] exists.’’ 100 because ‘‘it creates disincentives for adopting the Rule, ‘‘[t]he intent is to Therefore, the Rule contains sufficient manufacturers or sellers to create a avoid creating artificial or unnecessary safeguards against partiality. Mechanism in the first instance and leads to wasted and duplicative efforts procedural burdens so long as the basic c. Modify the Information To Be goals of speed, fairness, and in cases between the consumers and Submitted to the Mechanism 108 independent participation are met.’’ 95 manufacturers or sellers.’’ NCLC and Further, staff’s review of IDSM audits Rule 703.5(d) requires the Mechanism Mr. Johnson ask the Commission to 109 have not indicated any significant to render a decision ‘‘at least within 40 retain Rule 703.5(j). days of notification of the dispute.’’ 101 When the Commission first concern with IDSM procedures. The The Center for Auto Safety asks the promulgated Rule 703.5(j) in 1975, it Commission therefore retains the Rule Commission to amend Section 703.5 to did so based on the MMWA’s language, 703 procedures. provide that the ‘‘40 day deadline legislative history, and purpose: to b. Change Rules on Mechanism and begins upon the consumer filing a ensure that consumer protections were Auditor Impartiality substantially complete application in place in warranty disputes.110 The Two commenters 96 state that Rule regardless of whether the VIN is Commission explained that ‘‘reference 102 703.4 should be amended because provided or not.’’ The Center for within the written warranty to any Auto Safety claims that the Better binding, non-judicial remedy is neither the Mechanism nor the auditor, 111 who is selected by the Mechanism, is Business Bureau is evading the 40-day prohibited by the Rule and the Act.’’ impartial. Mr. Nowicki asks the deadline, because the BBB does not The Commission’s underlying premise Commission to require the Mechanism request Vehicle Identification Number was that its authority over Mechanisms to be completely independent of any (‘‘VIN’’) information on its consumer encompassed all nonjudicial dispute warrantor or trade association. Further, intake form but the BBB will only begin resolution procedures referenced within both the Center for Auto Safety and Mr. to consider the dispute after it receives a written warranty, including the VIN number. arbitration. Nowicki assert that a Mechanism should Section 703.5 requires the Mechanism During the 1996–97 rule review, some not select an auditor because doing so to ‘‘investigate, gather and organize all commenters asked the Commission to creates a conflict of interest. The Center information necessary for a fair and deviate from its position that Rule 703 for Auto Safety recommends that the expeditious decision in each Commission select an auditor for a fee, 103 16 CFR 703.5(c). and determine whether the Mechanisms 97 16 CFR 703.3(b). 104 See Staff Advisory Opinion to Mr. Dean are fair and expeditious. 98 Id. Determan, at 6, n6 (Aug. 28, 1985). 105 No changes are warranted because 99 16 CFR 703.7(d). 40 FR 60168, 60193 (Dec. 31, 1975). 106 Rule 703 already imposes specific 100 See, e.g., Morrison and Company, 2013 Audit According to the BBB Autoline program, a requirements concerning the of BBB Auto Line, available at http://www.ftc.gov/ claim is initiated only after a consumer provides the VIN and signs the application. A claim cannot be impartiality of both the Mechanism and sites/default/files/documents/reports_annual/2013- audit-better-business-bureau-auto-line-including- initiated online without this information. state-florida-and-state-ohio/2013bbbautoline.pdf, at 107 See NCLC at 13–14; Johnson at 3; AHAM at 92 AHAM at 6. 6. The audit further found that ‘‘consumers are 6. 93 Id. pleased with the impartiality and the quality of 108 AHAM at 6–7. 94 Id. dispute resolution services . . . .’’ Id. 109 NCLC at 13–18; Johnson at 3. 95 40 FR 60168, 60193 (Dec. 31, 1975). 101 16 CFR 703.5(d). 110 40 FR 60168, 60210 (Dec. 31, 1975). 96 Center for Auto Safety at 1; Nowicki at 1. 102 Center for Auto Safety at 1. 111 40 FR 60168, 60211 (Dec. 31, 1975).

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bans mandatory binding arbitration in that IDSMs resulting in a ‘‘decision’’— Just as important, any argument that warranties. The Commission, however, i.e., arbitration decisions rather than an ‘‘arbitration’’ can somehow elude relying on its previous analysis and the conciliation or mediation mechanisms— classification as an IDSM would subvert MMWA’s statutory language, reaffirmed would precede and influence, but not the purposes of the MMWA’s IDSM its view that the MMWA and Rule 703 foreclose, a subsequent judicial provisions. To effectuate its declared prohibit mandatory binding decision. policy of encouraging IDSMs that ‘‘fairly arbitration.112 As the Commission As the Commission has previously and expeditiously’’ settle consumer noted, Section 2310(a)(3) of the MMWA noted, the legislative history provides disputes, Congress: (1) Created states that, if a warrantor incorporates additional evidence that Congress incentives for warrantors to develop an IDSM provision in its warranty, ‘‘the intended all IDSMs, including IDSMs and (2) directed the Commission consumer may not commence a civil arbitration proceedings, to be to issue and enforce baseline rules for action (other than a class action) . . . nonbinding.120 The House committee IDSMs.124 Congress would not have unless he initially resorts to such report stated that ‘‘[a]n adverse decision created this elaborate structure for procedure.’’ 113 The Commission in any informal dispute settlement warrantor incentives and agency concluded ‘‘Rule 703 will continue to proceeding would not be a bar to a civil supervision of warrantors who want to prohibit warrantors from including action on the warranty involved in the mandate use of certain contractual binding arbitration clauses in their proceeding....’’121 That language procedures in their warranties, while contracts with consumers that would confirms what Congress strongly simultaneously permitting warrantors to require consumers to submit warranty implies in the statutory text: arbitration evade that structure simply by using disputes to binding arbitration.’’ 114 should precede but not preclude a another contractual procedure and Since the issuance of the 1999 FRN, subsequent court action. calling it something else (e.g., ‘‘binding courts have reached different The statutory scheme forecloses any arbitration’’) and thereby immunizing it conclusions as to whether the MMWA argument that warranty-related from all agency oversight.125 Other gives the Commission authority to ban arbitration proceedings fall outside the courts have upheld binding arbitration mandatory binding arbitration in statutory category of ‘‘informal dispute in this context on the ground that the warranties.115 In particular, two resolution mechanisms’’ and thus rationale of Rule 703 demonstrates an appellate courts have questioned outside the FTC’s rulemaking authority. impermissible hostility toward whether Congress intended binding As many legislators, policymakers, and arbitration in general and binding arbitration to be considered a type of courts understood at the time of the arbitration in particular.126 The IDSM, which would potentially place MMWA’s enactment, any arbitration Commission does not believe this is binding arbitration outside the scope of proceeding is, by comparison to judicial correct. Like the statutory text, the the MMWA.116 Nonetheless, the proceedings, an ‘‘informal’’ Commission’s rules encourage Commission reaffirms its long-held view ‘‘mechanism’’ for ‘‘dispute settlement,’’ arbitration proceedings when they that the MMWA disfavors, and and it thus falls squarely within the comply with IDSM procedural authorizes the Commission to prohibit, plain meaning of the term ‘‘informal safeguards and are not both mandatory mandatory binding arbitration in dispute settlement mechanism.’’ 122 and binding. Moreover, the warranties.117 Similarly, the MMWA’s conference Commission’s rules permit ‘‘post- First, as the Commission observed report indicates that ‘‘arbiters’’—i.e., the dispute’’ binding arbitration, where the during the 1999 rule review, the text of decisionmakers in any arbitration parties agree—after a warranty dispute section 2310(a)(3)(C)(i) contemplates proceeding—are responsible for making has arisen—to resolve their that consumers will ‘‘initially resort’’ to determinations in IDSMs, and thus disagreement through arbitration.127 IDSMs before commencing a civil further confirms that arbitration is a The Commission has also recognized action. That language clearly form of IDSM.123 that post-Mechanism binding arbitration presupposes that ‘‘a mechanism’s is allowed.128 The Commission’s decision cannot be binding, because if it 120 64 FR 19700, 19708 (Apr. 22, 1999). prohibition is limited only to instances 121 were, it would bar later court Report to Accompany H.R. 7917, H.R. Rep. No. where binding arbitration is action.’’ 118 Similarly, section 93–1107, at 41 (1974) (report of the House Committee on Interstate and Foreign Commerce); incorporated into the terms of a written 2310(a)(3)(C) specifies that ‘‘decisions’’ see also S. Rep. No. 93–151, at 3 (1973) (report of warranty governed by the MMWA.129 in IDSMs shall be admissible in any the Senate Committee on Commerce) (‘‘[I]f the AHAM also argues that eliminating subsequent ‘‘civil action.’’ 119 As that consumer is not satisfied with the results obtained in any informal dispute settlement proceeding, the the prohibition on binding arbitration language confirms, Congress intended consumer can pursue his legal remedies in a court would remove disincentives for of competent jurisdiction. . . .’’). warrantors to create a Mechanism and 112 64 FR 19700, 19708 (Apr. 22, 1999). 122 See, e.g., 119 Cong. Rec. 33,498 (1973) reduce judicial costs spent dealing with 113 Id. (quoting 15 U.S.C. 2310(a)(3)(C)(i)). (statement of Sen. Magnuson); Consumer duplicative warranty cases. However, 114 64 FR 19700, 19708 (Apr. 22, 1999). Protection: Hearings Before the Consumer 115 See, e.g., Kolev v. Euromotors West/The Auto Subcomm. of the S. Comm. on Commerce, S. Doc. Gallery, 658 F.3d 1024 (9th Cir. 2011), withdrawn, No. 91–48, at 69 (1969) (statement of FTC the duty has been found reasonable in ‘‘an 676 F.3d 867 (9th Cir. 2012) (withdrawn pending Commissioner Elman); Alexander v. Gardner- administrative or judicial enforcement proceeding’’ the issuance of a decision on a separate issue by the Denver Co., 415 U.S. 36, 58 (1974). The Supreme or ‘‘an informal dispute settlement proceeding.’’ 15 Court has repeatedly confirmed that arbitration is California Supreme Court in Sanchez v. Valencia U.S.C. 2304(b)(1). The conference report indicates a method of informal dispute resolution. See, e.g., Holding Co., S199119); Davis v. Southern Energy that the reasonableness of the additional duty is to AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740, Homes, Inc., 305 F.3d 1268 (11th Cir. 2002); Walton be determined by ‘‘the Commission, an arbiter, or 1749 (2011) (‘‘[T]he informality of arbitral v. Rose Mobile Homes, LLC, 298 F.3d 470 (5th Cir. a court.’’ S. Rep. No. 93–1408, at 25, H.R. Rep. No. proceedings is itself desirable, reducing the cost 2002); see also Seney v. Rent-A-Center, Inc., 738 93–1606, at 25 (1974) (Conf. Rep.) (emphasis and increasing the speed of dispute resolution.’’); F.3d 631 (4th Cir. 2013). added). Mitsubishi Motors v. Soler Chrysler-Plymouth, Inc., 116 Davis v. Southern Energy Homes, Inc., 305 124 15 U.S.C. 2310(a)(1)–(4). 473 U.S. 614, 628 (1985) (‘‘By agreeing to arbitrate 125 F.3d 1268 (11th Cir. 2002); Walton v. Rose Mobile . . ., [a party] trades the procedures and 9 U.S.C. 1–16. 126 Homes, LLC, 298 F.3d 470 (5th Cir. 2002). opportunity for review of the courtroom for the See, e.g., Davis v. S. Energy Homes, Inc., 305 117 See 40 FR 60168, 60210 (Dec. 31, 1975) and simplicity, informality, and expedition of F.3d 1268 (11th Cir. 2002). 64 FR 19700, 19708 (Apr. 22, 1999). arbitration.’’). 127 See 40 FR 60168, 60211 (Dec. 31, 1975). 118 64 FR 19700, 19708 (Apr. 22, 1999). 123 Section 2304(b)(1) prohibits warrantors from 128 Id. 119 15 U.S.C. 2310(a)(3). imposing any additional duty on consumers unless 129 Id.

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Congress already considered the issues determine whether the IDSM program is disputes.141 Given that Rule 703 already of warrantor incentives and availability working fairly and expeditiously. Based contemplates public access to of judicial remedies. To encourage on that review, a more detailed Mechanism information, and that the warrantors to create Mechanisms, investigation could then be Commission was mindful that Section 2310(a)(3) allows warrantors to prompted.’’ 136 In addition, the substantial recordkeeping costs may specify that use of a Mechanism is a Commission was mindful of the costs discourage the establishment of IDSMs, prerequisite to filing a MMWA suit.130 associated with substantial record- the Commission will not impose at this The Commission believes that the keeping requirements, so as not to time a mandatory electronic access current Rule appropriately implements discourage the establishment of IDSMs. requirement. Further, the Commission the incentive structure that Congress ‘‘Therefore, the Commission sought to staff reviews the audits annually and established in the MMWA. minimize the costs of the recordkeeping confirms they are Rule 703 compliant. burden on the IDSM while ensuring that e. Change the Statistical Requirements For these reasons, the Commission sufficient information was available to retains Rule 703.8 unchanged. Rule 703.6 requires the Mechanism to the public to provide a minimal prepare indices and statistical review.’’ 137 The Commission has 5. 16 CFR Part 239: Warranty Guides compilations on a variety of issues, reviewed the issue and believes that its Several commenters ask the including warrantor performance, previous position continues to be Commission to revise its Warranty brands at issue, all disputes delayed correct. Guides. First, three commenters 142 ask beyond 40 days, and the number and the Commission to modify § 239.2 to percentage of disputes that were f. Audits and Recordkeeping 131 Availability allow for the advertising of warranties resolved, decided, or pending. The online. The Commission’s Guides are Commission requires the compilation of Rule 703.7 contains the audit not specific to any medium, and already indices and statistics in part so any requirements for the Mechanism. The are applicable to all media. Second, person can review a Mechanism’s files. Rule requires that an audit be performed commenters recommend that the Guides ‘‘On the basis of the statistically annually evaluating: (1) Warrantors’ provide explicit, detailed guidance reported performance, an interested efforts to make consumers aware of the explaining how retailers and warrantors person could determine to file a Mechanism and (2) a random sample of can comply with the MMWA. As stated complaint with the Federal Trade disputes to determine the adequacy of previously, the .Com Disclosures and Commission . . . and thereby cause the the Mechanism’s complaint intake- the Businessperson’s Guide to Federal Commission to review the bona fide process and investigation and accuracy Warranty Law both provide additional operation of the dispute resolution of the Mechanism’s statistical 132 138 guidance concerning online disclosure mechanism.’’ compilations. Each audit should be obligations. Therefore, part 239 will Two commenters, the Center for Auto submitted to the Commission and made remain unchanged.143 Safety and Mr. Nowicki, ask the available to the public at a reasonable Commission to repeal the Mechanism’s cost. For the last several years, the List of Subjects record-keeping requirements contained Commission has published the audits 16 CFR Part 700 in Rule 703.6.133 The Center for Auto on its Web site, making them available Safety claims that most of the categories to the public free of charge. Trade practices, Warranties. for statistical analysis ‘‘are ambiguous, One commenter asks the Commission misleading or deceptive. Unfavorable to change Rule 703.8 to ‘‘mak[e] all 16 CFR Part 701 consumer outcomes can be reported as IDSM documents available online, and Trade practices, Warranties. favorable; untimely resolutions can be requir[e] the Commission to review reported as timely.’’ 134 samples of disputes to determine 16 CFR Part 703 Similar comments were received whether the mechanism fairly and Trade practices, Warranties. during the previous rule review. Then, expeditiously resolves disputes.’’ 139 commenters urged the Commission to Another commenter recommends that For the reasons set forth above, the abolish Rule 703.6 because the the Commission repeal the audit Federal Trade Commission amends 16 categories of statistical compilation requirements for the same reasons as the CFR parts 700, 701, and 703 as follows: were ‘‘either moot, nebulous, or even statistical compilation requirements.140 worse, misleading or deceptive.’’ 135 The Similar to the Commission’s reasoning 141 16 CFR 703.8. Commission then stated that it in upholding the statistical compilation 142 AHAM at 3; National Automobile Dealers appreciated that Rule 703.6(e)’s requirements, the Commission has Association at 2; Steinborn at 3. statistical compilations cannot provide 143 AHAM and Steinborn ask the Commission to decided to retain the audit requirements amend part 239 to recognize that ‘‘referral of an in-depth picture of the workings of without change for two reasons. First, consumers to manufacturer Internet sites which the Mechanism. ‘‘However, the statistics like the statistical compilation make available warranty information satisfies the were not intended to serve that requirements, the audit function requirement to disclose the actual product warranty function. The statistical compilations information prior to purchase by consumer.’’ attempts to provide a general basis for AHAM at 3; Steinborn at 3–4. Such reference is attempt to provide a basis for minimal interested parties to determine whether already contemplated for online retailers. Such review by the interested parties to the IDSM program is working fairly and reference, however, would be contrary to the expeditiously. Second, the IDSM must requirements imposed for offline retailers, as 130 15 U.S.C. 2310(a)(3). discussed above. Second, AHAM recommends that make available the statistical summaries the Guides be amended to require advertisers ‘‘to 131 See generally 16 CFR 703.6(b)–(e). to interested parties upon request, and clearly and conspicuously disclose what 132 40 FR 60168, 60213 (Dec. 31, 1975). hold open meetings to hear and decide component/system is warranted and for what 133 Center for Auto Safety at 1; Nowicki at 2. duration and if the balance of the product is not 134 Center for Auto Safety at 1. Nowicki claims covered or covered for a different duration disclose 136 Id. that empirical evidence suggests that the that as well to prevent the consumer from believing 137 ‘‘compliance self-proclamations’’ may be false and Id. that the terms of the warranty apply to the entire warranties may be deceptive. 138 16 CFR 703.7. product.’’ AHAM at 3–4. These requirements, 135 See 64 FR 19700, 19710 (Apr. 22, 1999) 139 Nowicki at 2. however, are already encompassed in Rule (discussing Mr. Nowicki’s comment). 140 Center for Auto Safety at 1. 701.3(a)(2) and therefore not needed in the Guides.

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PART 700—INTERPRETATIONS OF (c) * * * Such warranties are not consumer as a buyer (other than for MAGNUSON-MOSS WARRANTY ACT subject to the Act, since a written purposes of resale) of any consumer warranty under section 101(6) of the product, any person to whom such ■ 1. The authority citation for part 700 Act, 15 U.S.C. 2301(6), must become product is transferred during the continues to read as follows: ‘‘part of the basis of the bargain between duration of an implied or written Authority: Magnuson-Moss Warranty Act, a supplier and a buyer for purposes warranty (or service contract) applicable Pub. L. 93–637, 15 U.S.C. 2301. other than resale.’’ * * * to the product.* * * However, where ■ the duration of a full warranty is ■ 2. Amend § 700.1 by revising the 5. Amend § 700.4 by revising the first defined solely in terms of first purchaser second and fifth sentences of paragraph sentence to read as follows: ownership there can be no violation of (g) and the first sentence of paragraph (i) § 700.4 Parties ‘‘actually making’’ a written section 104(b)(4), 15 U.S.C. 2304(b)(4), to read as follows: warranty. since the duration of the warranty § 700.1 Products covered. Section 110(f) of the Act, 15 U.S.C. expires, by definition, at the time of 2310(f), provides that only the supplier transfer.* * * * * * * * ‘‘actually making’’ a written warranty is (g) * * * Section 103, 15 U.S.C. 2303, ■ 8. Amend § 700.7 by revising the first liable for purposes of FTC and private sentence of paragraph (a) to read as applies to consumer products actually enforcement of the Act.* * * costing the consumer more than $10, follows: ■ 6. Amend § 700.5 by revising excluding tax.* * * This interpretation § 700.7 Use of warranty registration cards. applies in the same manner to the paragraph (a) and the first and second minimum dollar limits in section 102, sentences of paragraph (b) to read as (a) Under section 104(b)(1) of the Act, 15 U.S.C. 2302, and rules promulgated follows: 15 U.S.C. 2304(b)(1), a warrantor under that section. offering a full warranty may not impose § 700.5 Expressions of general policy. on consumers any duty other than * * * * * (a) Under section 103(b), 15 U.S.C. notification of a defect as a condition of (i) The Act covers written warranties 2303(b), statements or representations of securing remedy of the defect or on consumer products ‘‘distributed in general policy concerning customer malfunction, unless such additional commerce’’ as that term is defined in satisfaction which are not subject to any duty can be demonstrated by the section 101(13), 15 U.S.C. 2301(13). specific limitation need not be warrantor to be reasonable.* * * *** designated as full or limited warranties, ■ ■ 9. Amend § 700.8 by revising the third 3. Amend § 700.2 by revising the first and are exempt from the requirements sentence to read as follows: sentence to read as follows: of sections 102, 103, and 104 of the Act, 15 U.S.C. 2302–2304, and rules § 700.8 Warrantor’s decision as final. § 700.2 Date of manufacture. thereunder. However, such statements * * * Such statements are deceptive Section 112 of the Act, 15 U.S.C. remain subject to the enforcement since section 110(d) of the Act, 15 2312, provides that the Act shall apply provisions of section 110 of the Act, 15 U.S.C. 2310(d), gives state and federal only to those consumer products U.S.C. 2310, and to section 5 of the courts jurisdiction over suits for breach manufactured after July 4, 1975.* * * Federal Trade Commission Act, 15 of warranty and service contract. ■ 4. Amend § 700.3 by revising the U.S.C. 45. ■ 10. Amend § 700.9 by revising the first fourth and sixth sentences and footnote (b) The section 103(b), 15 U.S.C. and third sentences to read as follows: 1 of paragraph (a), the first sentence of 2303(b), exemption applies only to paragraph (b), and the sixth sentence of general policies, not to those which are § 700.9 Duty to install under a full paragraph (c) to read as follows: limited to specific consumer products warranty. manufactured or sold by the supplier Under section 104(a)(1) of the Act, 15 § 700.3 Written warranty. offering such a policy. In addition, to U.S.C. 2304(a)(1), the remedy under a (a) * * * Section 101(6), 15 U.S.C. qualify for an exemption under section full warranty must be provided to the 2301(6), provides that a written 103(b), 15 U.S.C. 2303(b), such policies consumer without charge.* * * affirmation of fact or a written promise may not be subject to any specific However, this does not preclude the of a specified level of performance must limitations.* * * warrantor from imposing on the relate to a specified period of time in ■ 7. Amend § 700.6 by revising the first consumer a duty to remove, return, or order to be considered a ‘‘written sentence of paragraph (a) and the first, reinstall where such duty can be warranty.’’ 1 * * * In addition, section second, and fourth sentences of demonstrated by the warrantor to meet 111(d), 15 U.S.C. 2311(d), exempts from paragraph (b) to read as follows: the standard of reasonableness under the Act (except section 102(c), 15 U.S.C. section 104(b)(1), 15 U.S.C. 2304(b)(1). 2302(c)) any written warranty the § 700.6 Designation of warranties. ■ 11. Amend § 700.10 by revising the making or content of which is required (a) Section 103 of the Act, 15 U.S.C. section heading, paragraph (a), the first by federal law.* * * 2303, provides that written warranties sentence in paragraph (b), and (b) Certain terms, or conditions, of on consumer products manufactured paragraph (c) to read as follows: sale of a consumer product may not be after July 4, 1975, and actually costing ‘‘written warranties’’ as that term is the consumer more than $10, excluding § 700.10 Prohibited tying. defined in section 101(6), 15 U.S.C. tax, must be designated either ‘‘Full (a) Section 102(c), 15 U.S.C. 2302(c), 2301(6), and should not be offered or (statement of duration) Warranty’’ or prohibits tying arrangements that described in a manner that may deceive ‘‘Limited Warranty’’.* * * condition coverage under a written consumers as to their enforceability (b) Based on section 104(b)(4), 15 warranty on the consumer’s use of an under the Act.* * * U.S.C. 2304(b)(4), the duties under article or service identified by brand, subsection (a) of section 104, 15 U.S.C. trade, or corporate name unless that 1 A ‘‘written warranty’’ is also created by a 2304, extend from the warrantor to each article or service is provided without written affirmation of fact or a written promise that the product is defect free, or by a written person who is a consumer with respect charge to the consumer. undertaking of remedial action within the meaning to the consumer product. Section (b) Under a limited warranty that of section 101(6)(B), 15 U.S.C. 2301(6)(B). 101(3), 15 U.S.C. 2301(3), defines a provides only for replacement of

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defective parts and no portion of labor that most federal laws (including the PART 703—INFORMAL DISPUTE charges, section 102(c), 15 U.S.C. Magnuson-Moss Warranty Act) shall not SETTLEMENT PROCEDURES 2302(c), prohibits a condition that the be construed to invalidate, impair, or consumer use only service (labor) supersede any law enacted by any State ■ 16. The authority citation for part 703 identified by the warrantor to install the for the purpose of regulating the continues to read as follows: replacement parts.* * * business of insurance. While three Authority: 15 U.S.C. 2309 and 2310. (c) No warrantor may condition the specific laws are subject to a separate continued validity of a warranty on the proviso, the Magnuson-Moss Warranty ■ 17. Amend § 703.1 by revising use of only authorized repair service Act is not one of them. Thus, to the paragraph (e) to read as follows: and/or authorized replacement parts for extent the Magnuson-Moss Warranty § 703.1 Definitions. non-warranty service and maintenance Act’s service contract provisions apply (other than an article of service to the business of insurance, they are * * * * * provided without charge under the effective so long as they do not (e) Mechanism means an informal warranty or unless the warrantor has invalidate, impair, or supersede a State dispute settlement procedure which is obtained a waiver pursuant to section law enacted for the purpose of incorporated into the terms of a written 102(c) of the Act, 15 U.S.C. 2302(c)). For regulating the business of insurance. warranty to which any provision of Title example, provisions such as, ‘‘This (b) ‘‘Written warranty’’ and ‘‘service I of the Act applies, as provided in warranty is void if service is performed contract’’ are defined in sections 101(6) section 110 of the Act, 15 U.S.C. 2310. by anyone other than an authorized and 101(8) of the Act, 15 U.S.C. 2301(6) * * * * * ‘ABC’ dealer and all replacement parts and 15 U.S.C. 2301(8), must be genuine ‘ABC’ parts,’’ and the ■ 18. Amend § 703.2 by revising the respectively.* * * like, are prohibited where the service or second sentence of paragraph (a) to read parts are not covered by the warranty. (c) A service contract under the Act as follows: must meet the definitions of section These provisions violate the Act in two § 703.2 Duties of warrantor. ways. First, they violate the section 101(8), 15 U.S.C. 2301(8). An agreement 102(c), 15 U.S.C. 2302(c), ban against which would meet the definition of (a) * * * This paragraph (a) shall not tying arrangements. Second, such written warranty in section 101(6)(A) or prohibit a warrantor from incorporating provisions are deceptive under section (B), 15 U.S.C. 2301(6)(A) or (B), but for into the terms of a written warranty the 110 of the Act, 15 U.S.C. 2310, because its failure to satisfy the basis of the step-by-step procedure which the a warrantor cannot, as a matter of law, bargain test is a service contract.* * * consumer should take in order to obtain avoid liability under a written warranty performance of any obligation under the where a defect is unrelated to the use by PART 701—DISCLOSURE OF warranty as described in section a consumer of ‘‘unauthorized’’ articles WRITTEN CONSUMER PRODUCT 102(a)(7) of the Act, 15 U.S.C. or service. In addition, warranty WARRANTY TERMS AND CONDITIONS 2302(a)(7), and required by part 701 of language that implies to a consumer this subchapter. acting reasonably in the circumstances ■ 13. The authority citation for part 701 * * * * * that warranty coverage requires the continues to read as follows: ■ 19. Amend § 703.5 by revising consumer’s purchase of an article or Authority: 15 U.S.C. 2302 and 2309. paragraph (g)(2), the first sentence in service identified by brand, trade or ■ 14. Amend § 701.1 by revising paragraph (i), and the third sentence in corporate name is similarly deceptive. paragraph (j) to read as follows: For example, a provision in the paragraph (d) to read as follows: warranty such as, ‘‘use only an § 701.1 Definitions. § 703.5 Operation of the Mechanism. authorized ‘ABC’ dealer’’ or ‘‘use only * * * * * ‘ABC’ replacement parts,’’ is prohibited * * * * * (g) * * * where the service or parts are not (d) Implied warranty means an provided free of charge pursuant to the implied warranty arising under State (2) The Mechanism’s decision is warranty. This does not preclude a law (as modified by sections 104(a) and admissible in evidence as provided in warrantor from expressly excluding 108 of the Act, 15 U.S.C. 2304(a) and section 110(a)(3) of the Act, 15 U.S.C. liability for defects or damage caused by 2308), in connection with the sale by a 2310(a)(3); and ‘‘unauthorized’’ articles or service; nor supplier of a consumer product. * * * * * does it preclude the warrantor from * * * * * (i) A requirement that a consumer denying liability where the warrantor ■ resort to the Mechanism prior to can demonstrate that the defect or 15. Amend § 701.3 by revising paragraph (a)(7) to read as follows: commencement of an action under damage was so caused. section 110(d) of the Act, 15 U.S.C. ■ 12. Amend § 700.11 by: § 701.3 Written warranty terms. 2310(d), shall be satisfied 40 days after ■ a. Revising the fourth and fifth notification to the Mechanism of the (a) * * * sentences and adding a sixth sentence dispute or when the Mechanism in paragraph (a); and (7) Any limitations on the duration of completes all of its duties under ■ b. Revising the first sentence of implied warranties, disclosed on the paragraph (d) of this section, whichever paragraph (b) and the first and second face of the warranty as provided in occurs sooner. * * * section 108 of the Act, 15 U.S.C. 2308, sentences of paragraph (c). (j) * * * In any civil action arising The revisions and addition read as accompanied by the following out of a warranty obligation and relating follows: statement: to a matter considered by the § 700.11 Written warranty, service Some States do not allow limitations Mechanism, any decision of the contract, and insurance distinguished for on how long an implied warranty lasts, Mechanism shall be admissible in purposes of compliance under the Act. so the above limitation may not apply evidence, as provided in section (a) * * * The McCarran-Ferguson to you. 110(a)(3) of the Act, 15 U.S.C. Act, 15 U.S.C. 1011 et seq., provides * * * * * 2310(a)(3).

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By direction of the Commission, DEPARTMENT OF HEALTH AND POSTAL REGULATORY COMMISSION Commissioner Ohlhausen dissenting. HUMAN SERVICES Donald S. Clark, 39 CFR Part 3020 Secretary. Food and Drug Administration [Docket Nos. MC2010–21 and CP2010–36] Note: The following dissent will not appear 21 CFR Part 16 in the Code of Federal Regulations. Update to Product Lists [Docket No. FDA–2015–N–0011] AGENCY: Postal Regulatory Commission. Dissenting Statement of Commissioner ACTION: Final rule. Maureen K. Ohlhausen Regulatory Hearing Before the Food and Drug Administration; Technical SUMMARY: The Commission is updating I voted against the Commission’s Amendment Final Revised Interpretations of the the product lists. This action reflects a Magnuson-Moss Warranty Act (MMWA) AGENCY: Food and Drug Administration, publication policy adopted by Rule because it retains Rule 703.5(j)’s HHS. Commission order. The referenced policy assumes periodic updates. The prohibition on pre-dispute mandatory ACTION: Final rule; technical updates are identified in the body of binding arbitration.1 amendment. Since the last Rule review in 1997, this document. The product lists, which two federal appellate courts have held SUMMARY: The Food and Drug is re-published in its entirety, includes that the MMWA does not prohibit Administration (FDA) is updating an these updates. binding arbitration.2 Noting the federal authority citation for the Code of DATES: Effective date: July 20, 2015. policy favoring arbitration expressed in Federal Regulations. This action is Applicability dates: March 31, 2015, the Federal Arbitration Act (FAA),3 technical in nature and is intended to Parcel Return Service Contract 6 these courts concluded that the provide accuracy of the Agency’s (MC2015–41 and CP2015–53); April 8, MMWA’s statutory language and regulations. 2015, Priority Mail Contract 121 legislative history did not overcome the (MC2015–43 and CP2015–54); April 8, DATES: This rule is effective July 20, 2015, Parcel Select Contract 9 (MC2015– presumption in favor of arbitration and 2015. that the purposes of the MMWA and the 44 and CP2015–55); April 8, 2015, FAA were not in inherent conflict. The FOR FURTHER INFORMATION CONTACT: Priority Mail & First-Class Package courts also declined to give the Mary E. Kennelly, Office of Regulatory Service Contract 3 (MC2015–45 and Commission’s contrary interpretation Affairs, Food and Drug Administration, CP2015–56); April 21, 2015, Priority Chevron deference.4 Although some 10903 New Hampshire Ave., Bldg. 32, Mail Express & Priority Mail Contract 17 lower courts have reached a different Rm. 4338, Silver Spring, MD 20993– (MC2015–47 and CP2015–58); April 21, conclusion, there is no circuit court 0002, 240–402–9577, 2015, Priority Mail Contract 122 precedent upholding the Commission’s FDASIAImplementationORA@ (MC2015–46 and CP2015–57); May 1, interpretation of the MMWA in Rule fda.hhs.gov. 2015, Priority Mail & First-Class Package Service Contract 4 (MC2015–48 and 703.5(j). Additionally, in several recent SUPPLEMENTARY INFORMATION: In a CP2015–60); May 12, 2015, Priority Mail cases, the Supreme Court has indicated previous rulemaking, the authority a strong preference for arbitration.5 Express & Priority Mail Contract 18 citation for 21 CFR part 16 was (MC2015–49 and CP2015–61); May 27, The courts have sent a clear signal inadvertently altered to omit 28 U.S.C. that the Commission’s position that 2015, Global Expedited Package 2112 and changed 21 U.S.C. 467f to 21 Services Contracts Non-Published Rates MMWA prohibits binding arbitration is U.S.C. 467F. FDA is reversing those no longer supportable.6 When faced 6 (MC2015–23 and CP2015–65); May 28, changes such that 28 U.S.C. 2112 and 21 2015, Parcel Return Service Contract 7 with such a signal, the Commission U.S.C. 467f are included in the list of should not reaffirm the rule in question. (MC2015–50 and CP2015–72); May 28, authority citations for 21 CFR part 16. 2015, Parcel Return Service Contract 8 I therefore respectfully dissent. [FR Doc. 2015–14065 Filed 7–17–15; 8:45 am] List of Subjects in 21 CFR Part16 (MC2015–51 and CP2015–73); June 9, 2015, Priority Mail Contract 124 BILLING CODE 6750–01–P Administrative practice and (MC2015–53 and CP2015–81); June 9, procedure. 2015, Priority Mail Contract 123 1 I do not object to the other final actions taken Therefore, under the Federal Food, in this review. (MC2015–52 and CP2015–80); June 16, 2 See Walton v. Rose Mobile Homes, LLC, 298 Drug, and Cosmetic Act and under 2015, Priority Mail Contract 125 F.3d 470 (5th Cir. 2002); Davis v. Southern Energy authority delegated to the Commissioner (MC2015–54 and CP2015–82). Homes, Inc., 305 F.3d 1268 (11th Cir. 2002). of Food and Drugs, 21 CFR part 16 is FOR FURTHER INFORMATION CONTACT: 3 9 U.S.C. 1. See Shearson/Am. Express Inc. v. amended as follows: McMahon, 482 U.S. 220 (1987) (noting that the David A. Trissell, General Counsel, at presumption of the FAA is that arbitration is PART 16—REGULATORY HEARING 202–789–6800. preferable and Congress must clearly override that BEFORE THE FOOD AND DRUG SUPPLEMENTARY INFORMATION: This presumption if it is to be disregarded). document identifies updates to the 4 Chevron U.S.A., Inc. v. Natural Resources ADMINISTRATION Defense Council, Inc., 467 U.S. 837 (1984) (holding product lists, which appear as 39 CFR that courts defer to an agency’s interpretation of a ■ 1. The authority citation for 21 CFR Appendix A to Subpart A of Part 3020— statute if ‘‘(1) Congress has not spoken directly to part 16 is revised to read as follows: Mail Classification Schedule. the issue; and (2) the agency’s interpretation ‘is Publication of the updated product lists based on a permissible construction of the Authority: 15 U.S.C. 1451–1461; 21 U.S.C. statute’ ’’). 141–149, 321–394, 467f, 679, 821, 1034; 28 in the Federal Register is addressed in 5 See, e.g,. Am. Express Co. v. Italian Colors Rest., U.S.C. 2112; 42 U.S.C. 201–262, 263b, 364. the Postal Accountability and 133 S. Ct. 2304 (2013), AT&T Mobility LLC v. Enhancement Act (PAEA) of 2006. Concepcion, 131 S. Ct. 1740 (2011). Dated: July 15, 2015. Authorization. The Commission 6 See Davis, 305 F.3d at 1280 (‘‘[T]he FTC’s Leslie Kux, process for periodic publication of interpretation of the MMWA is unreasonable, and Associate Commissioner for Policy. we decline to defer to the FTC regulations of the updates was established in Docket Nos. MMWA regarding binding arbitration in written [FR Doc. 2015–17714 Filed 7–17–15; 8:45 am] MC2010–21 and CP2010–36, Order No. warranties.’’). BILLING CODE 4164–01–P 445, April 22, 2010, at 8.

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Changes. The product lists are being 5. Priority Mail Contract 31 (MC2011– ■ 2. Revise Appendix A of Subpart A of updated by publishing a replacement in 10 and CP2011–46) (Order No. 637). Part 3020 to read as follows: its entirety of 39 CFR Appendix A to 6. Priority Mail Contract 32 (MC2011– Appendix A to Subpart A of Part Subpart A of Part 3020—Mail 11 and CP2011–47) (Order No. 639). 3020—Mail Classification Schedule Classification Schedule. The following 7. Priority Mail Contract 34 (MC2011– products are being added, removed, or 17 and CP2011–56) (Order No. 655). (An asterisk (*) indicates an organizational moved within the product lists: 8. Priority Mail Contract 35 (MC2011– class or group, not a Postal Service product.) 1. Parcel Return Service Contract 6 18 and CP2011–57) (Order No. 656). Part A—Market Dominant Products (MC2015–41 and CP2015–53) (Order 9. Priority Mail Contract 36 (MC2012– 1000 Market Dominant Product List No. 2421), added March 31, 2015. 2 and CP2012–6) (Order No. 1170). 2. Priority Mail Contract 121 10. Priority Mail Contract 38 First-Class Mail * (MC2015–43 and CP2015–54) (Order (MC2012–7 and CP2012–15) (Order No. Single-Piece Letters/Postcards Presorted Letters/Postcards No. 2428), added April 8, 2015. 1197). 3. Parcel Select Contract 9 (MC2015– Flats 11. Priority Mail Contract 49 Parcels 44 and CP2015–55) (Order No. 2429), (MC2013–25 and CP2013–33) (Order Outbound Single-Piece First-Class Mail added April 8, 2015. No. 1607). International 4. Priority Mail & First-Class Package 12. Priority Mail Contract 50 Inbound Letter Post Service Contract 3 (MC2015–45 and (MC2013–26 and CP2013–34) (Order Standard Mail (Commercial and Nonprofit)* CP2015–56) (Order No. 2430), added No. 1608). High Density and Saturation Letters April 8, 2015. 13. Priority Mail Contract 68 High Density and Saturation Flats/Parcels 5. Priority Mail Express & Priority (MC2014–6 and CP2014–7) (Order No. Carrier Route Mail Contract 17 (MC2015–47 and 1893). Letters CP2015–58) (Order No. 2447), added Flats 14. Priority Mail Contract 69 Parcels April 21, 2015. (MC2014–7 and CP2014–8) (Order No. 6. Priority Mail Contract 122 Every Door Direct Mail—Retail 1895). Periodicals * (MC2015–46 and CP2015–57) (Order 15. Priority Mail Express & Priority In-County Periodicals No. 2451), added April 21, 2015. Mail Contract 15 (MC2014–3 and Outside County Periodicals 7. Priority Mail & First-Class Package CP2014–3) (Order No. 1872). Package Services * Service Contract 4 (MC2015–48 and 16. Parcel Select Contract 1 (MC2011– Alaska Bypass Service CP2015–60) (Order No. 2464), added 16 and CP2011–53) (Order No. 686). Bound Printed Matter Flats May 1, 2015. 17. First-Class Package Service Bound Printed Matter Parcels 8. Priority Mail Express & Priority Contract 1 (MC2012–11 and CP2012–19) Media Mail/Library Mail Special Services * Mail Contract 18 (MC2015–49 and (Order No. 1339). CP2015–61) (Order No. 2480), added Ancillary Services 18. First-Class Package Service International Ancillary Services May 12, 2015. Contract 3 (MC2012–19 and CP2012–25) 9. Global Expedited Package Services Address Management Services (Order No. 1355). Contracts Non-Published Rates 6 Caller Service 19. First-Class Package Service Credit Card Authentication (MC2015–23 and CP2015–65) (Order Contract 4 (MC2012–20 and CP2012–26) International Reply Coupon Service No. 2513), added May 27, 2015. (Order No. 1356). International Business Reply Mail Service 10. Parcel Return Service Contract 7 Money Orders (MC2015–50 and CP2015–72) (Order 20. First-Class Package Service Contract 5 (MC2012–21 and CP2012–27) Post Office Box Service No. 2515), added May 28, 2015. Customized Postage 11. Parcel Return Service Contract 8 (Order No. 1357). Stamp Fulfillment Services (MC2015–51 and CP2015–73) (Order 21. First-Class Package Service Negotiated Service Agreements * No. 2518), added May 28, 2015. Contract 6 (MC2012–22 and CP2012–28) Domestic * 12. Priority Mail Contract 124 (Order No. 1358). Valassis Direct Mail, Inc. Negotiated (MC2015–53 and CP2015–81) (Order 22. First-Class Package Service Service Agreement No. 2534), added June 9, 2015. Contract 7 (MC2012–23 and CP2012–29) PHI Acquisitions, Inc. Negotiated Service 13. Priority Mail Contract 123 (Order No. 1359). Agreement Updated product lists. The referenced International* (MC2015–52 and CP2015–80) (Order Inbound Market Dominant Multi-Service No. 2535), added June 9, 2015. changes to the product lists are incorporated into 39 CFR Appendix A Agreements with Foreign Postal 14. Priority Mail Contract 125 Operators (MC2015–54 and CP2015–82) (Order to Subpart A of Part 3020—Mail Inbound Market Dominant Expre´s Service No. 2542), added June 16, 2015. Classification Schedule. Agreement 1 The following negotiated service List of Subjects in 39 CFR Part 3020 Nonpostal Services * agreements have expired and are being Alliances with the Private Sector to Defray deleted from the Mail Classification Administrative practice and Cost of Key Postal Functions Philatelic Schedule: procedure, Postal Service. Sales 1. Discover Financial Services 1 For the reasons discussed in the Market Tests * (MC2011–19 and R2011–3) (Order No. preamble, the Postal Regulatory Part B—Competitive Products 694). Commission amends part 3020 of title 2000 Competitive Product List 2. Priority Mail Express Contract 10 39 of the Code of Federal Regulations as (MC2011–12 and CP2011–48) (Order follows: Domestic Products * No. 640). Priority Mail Express PART 3020—PRODUCT LISTS Priority Mail 3. Parcel Return Service Contract 3 Parcel Select (MC2013–39 and CP2013–51) (Order ■ 1. The authority citation for part 3020 Parcel Return Service No. 1672). First-Class Package Service 4. Parcel Return Service Contract 4 continues to read as follows: Standard Post (MC2013–46 and CP2013–60) (Order Authority: 39 U.S.C. 503; 3622; 3631; 3642; International Products * No. 1711). 3682. Outbound International Expedited Services

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Inbound Parcel Post (at UPU rates) Priority Mail Contract 87 First-Class Package Service Contract 13 Outbound Priority Mail International Priority Mail Contract 88 First-Class Package Service Contract 14 International Priority Airmail (IPA) Priority Mail Contract 89 First-Class Package Service Contract 15 International Surface Air List (ISAL) Priority Mail Contract 90 First-Class Package Service Contract 16 International Direct Sacks—M-Bags Priority Mail Contract 91 First-Class Package Service Contract 17 Outbound Single-Piece First-Class Package Priority Mail Contract 92 First-Class Package Service Contract 18 International Service Priority Mail Contract 93 First-Class Package Service Contract 19 Negotiated Service Agreements * Priority Mail Contract 94 First-Class Package Service Contract 20 Domestic * Priority Mail Contract 95 First-Class Package Service Contract 21 Priority Mail Express Contract 8 Priority Mail Contract 96 First-Class Package Service Contract 22 Priority Mail Express Contract 11 Priority Mail Contract 97 First-Class Package Service Contract 23 Priority Mail Express Contract 12 Priority Mail Contract 98 First-Class Package Service Contract 24 Priority Mail Express Contract 13 Priority Mail Contract 99 First-Class Package Service Contract 25 Priority Mail Express Contract 14 Priority Mail Contract 100 First-Class Package Service Contract 26 Priority Mail Express Contract 15 Priority Mail Contract 101 First-Class Package Service Contract 27 Priority Mail Express Contract 16 Priority Mail Contract 102 First-Class Package Service Contract 28 Priority Mail Express Contract 17 Priority Mail Contract 103 First-Class Package Service Contract 29 Priority Mail Express Contract 18 Priority Mail Contract 104 First-Class Package Service Contract 30 Priority Mail Express Contract 19 Priority Mail Contract 105 First-Class Package Service Contract 31 Priority Mail Express Contract 20 Priority Mail Contract 106 First-Class Package Service Contract 32 Priority Mail Express Contract 21 Priority Mail Contract 107 First-Class Package Service Contract 33 Priority Mail Express Contract 22 Priority Mail Contract 108 First-Class Package Service Contract 34 Priority Mail Express Contract 23 Priority Mail Contract 109 First-Class Package Service Contract 35 Priority Mail Express Contract 24 Priority Mail Contract 110 First-Class Package Service Contract 36 Priority Mail Express Contract 25 Priority Mail Contract 111 First-Class Package Service Contract 37 Parcel Return Service Contract 5 Priority Mail Contract 112 Priority Mail Express, Priority Mail & First- Parcel Return Service Contract 6 Priority Mail Contract 113 Class Package Service Contract 1 Parcel Return Service Contract 7 Priority Mail Contract 114 Priority Mail Express, Priority Mail & First- Parcel Return Service Contract 8 Priority Mail Contract 115 Class Package Service Contract 2 Priority Mail Contract 24 Priority Mail Contract 116 Priority Mail Express, Priority Mail & First- Class Package Service Contract 3 Priority Mail Contract 29 Priority Mail Contract 117 Priority Mail Express, Priority Mail & First- Priority Mail Contract 33 Priority Mail Contract 118 Class Package Service Contract 4 Priority Mail Contract 39 Priority Mail Contract 119 Priority Mail & First-Class Package Service Priority Mail Contract 40 Priority Mail Contract 120 Contract 1 Priority Mail Contract 41 Priority Mail Contract 121 Priority Mail & First-Class Package Service Priority Mail Contract 42 Priority Mail Contract 122 Contract 2 Priority Mail Contract 43 Priority Mail Contract 123 Priority Mail & First-Class Package Service Priority Mail Contract 44 Priority Mail Contract 124 Contract 3 Priority Mail Contract 45 Priority Mail Contract 125 Priority Mail & First-Class Package Service Priority Mail Contract 46 Priority Mail Express & Priority Mail Contract 4 Priority Mail Contract 47 Contract 9 Outbound International * Priority Mail Contract 48 Priority Mail Express & Priority Mail Global Expedited Package Services (GEPS) Priority Mail Contract 51 Contract 10 Contracts Priority Mail Contract 52 Priority Mail Express & Priority Mail GEPS 3 Priority Mail Contract 53 Contract 11 Global Direct Contracts Priority Mail Contract 54 Priority Mail Express & Priority Mail Global Direct Contracts 1 Priority Mail Contract 55 Contract 12 Global Bulk Economy (GBE) Contracts Priority Mail Contract 56 Priority Mail Express & Priority Mail Global Plus Contracts Priority Mail Contract 57 Contract 13 Global Plus 1C Priority Mail Contract 58 Priority Mail Express & Priority Mail Global Plus 2C Priority Mail Contract 59 Contract 14 Global Reseller Expedited Package Priority Mail Contract 60 Priority Mail Express & Priority Mail Contracts Priority Mail Contract 61 Contract 16 Global Reseller Expedited Package Services Priority Mail Contract 62 Priority Mail Express & Priority Mail 1 Priority Mail Contract 63 Contract 17 Global Reseller Expedited Package Services Priority Mail Contract 64 Priority Mail Express & Priority Mail 2 Priority Mail Contract 65 Contract 18 Global Reseller Expedited Package Services Priority Mail Contract 66 Parcel Select & Parcel Return Service 3 Priority Mail Contract 67 Contract 3 Global Reseller Expedited Package Services Priority Mail Contract 70 Parcel Select & Parcel Return Service 4 Priority Mail Contract 71 Contract 5 Global Expedited Package Services Priority Mail Contract 72 Parcel Select Contract 2 (GEPS)—Non-Published Rates Priority Mail Contract 73 Parcel Select Contract 3 Global Expedited Package Services Priority Mail Contract 74 Parcel Select Contract 4 (GEPS)—Non-Published Rates 2 Priority Mail Contract 75 Parcel Select Contract 5 Global Expedited Package Services Priority Mail Contract 76 Parcel Select Contract 6 (GEPS)—Non-Published Rates 3 Priority Mail Contract 77 Parcel Select Contract 7 Global Expedited Package Services Priority Mail Contract 78 Parcel Select Contract 8 (GEPS)—Non-Published Rates 4 Priority Mail Contract 79 Parcel Select Contract 9 Global Expedited Package Services Priority Mail Contract 80 Priority Mail—Non-Published Rates (GEPS)—Non-Published Rates 5 Priority Mail Contract 81 Priority Mail—Non-Published Rates 1 Global Expedited Package Services Priority Mail Contract 82 First-Class Package Service Contract 8 (GEPS)—Non-Published Rates 6 Priority Mail Contract 83 First-Class Package Service Contract 9 Priority Mail International Regional Rate Priority Mail Contract 84 First-Class Package Service Contract 10 Boxes—Non-Published Rates Priority Mail Contract 85 First-Class Package Service Contract 11 Outbound Competitive International Priority Mail Contract 86 First-Class Package Service Contract 12 Merchandise Return Service

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Agreement with Royal Mail Group, Ltd. ENVIRONMENTAL PROTECTION 60604, (312) 886–1767, Priority Mail International Regional Rate AGENCY [email protected]. Boxes Contract 1 SUPPLEMENTARY INFORMATION: Inbound International* 40 CFR Part 52 Throughout this document whenever International Business Reply Service [EPA–R05–OAR–2013–0436; EPA–R05– ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean (IBRS) Competitive Contracts OAR–2014–0663; FRL–9929–71–Region 5] EPA. This supplementary information International Business Reply Service section is arranged as follows: Competitive Contract 1 Approval and Promulgation of Air International Business Reply Service I. What is the background for this action? Quality Implementation Plans; Illinois; II. What action is EPA taking? Competitive Contract 3 Midwest Generation Variances III. Incorporation by reference Inbound Direct Entry Contracts with IV. Statutory and Executive Order Reviews. Customers AGENCY: Environmental Protection Inbound Direct Entry Contracts with Agency (EPA). I. What is the background for this action? Foreign Postal Administrations ACTION: Final rule. Inbound Direct Entry Contracts with On June 24, 2011, Illinois submitted Foreign Postal Administrations SUMMARY: The Environmental Protection a plan to address the requirements of Inbound Direct Entry Contracts with Agency (EPA) is approving into the the Regional Haze Rule, as codified at Foreign Postal Administrations 1 Illinois regional haze State 40 CFR 51.308. EPA approved Illinois’ Inbound EMS Implementation Plan (SIP) variances regional haze SIP on July 6, 2012 (77 FR Inbound EMS 2 affecting the following Midwest 39943). Among the rules approved in Inbound Air Parcel Post (at non-UPU rates) Generation, LLC facilities: Crawford this action to meet the best available Royal Mail Group Inbound Air Parcel Post Generating Station (Cook County), Joliet retrofit technology (BART) requirements Agreement Generating Station (Will County), of the Regional Haze Rule are Illinois Inbound Competitive Multi-Service Powerton Generating Station (Tazewell Administrative Code rules: 35 Ill. Adm. Agreements with Foreign Postal County), Waukegan Generating Station Code 225.292: ‘‘Applicability of the Operators 1 (Lake County), and Will County Combined Pollutant Standard;’’ 35 Ill. Special Services * Generating Station (Will County). The Adm. Code 225.295 ‘‘Combined Address Enhancement Services Illinois Environmental Protection Pollutant Standard: Emissions Greeting Cards, Gift Cards, and Stationery Agency (IEPA) submitted these Standards for NOX and SO2;’’ 35 Ill. International Ancillary Services variances to EPA for approval on May Adm. Code 225.296 ‘‘Combined International Money Transfer Service— 16, 2013, and August 18, 2014. Pollutant Standard: Control Technology Outbound DATES: This final rule is effective on Requirements for NOX, SO2, and PM International Money Transfer Service— August 19, 2015. Emissions’’ (except for paragraph Inbound ADDRESSES: EPA has established dockets 225.296(d)); and 35 Ill. Adm. Code 225 Premium Forwarding Service Appendix A, which identifies the Shipping and Mailing Supplies for this action under Docket ID Nos. Midwest Generation Electric Generating Post Office Box Service EPA–R05–OAR–2013–0436 and EPA– Units (EGUs) specified for purposes of Competitive Ancillary Services R05–OAR–2014–0663. All documents in the docket are listed on the the combined pollutant standard (CPS). Nonpostal Services * The Illinois Pollution Control Board Advertising www.regulations.gov Web site. Although (IPCB) granted Midwest Generation Licensing of Intellectual Property other listed in the index, some information is variances to Section 225.296(a)(1) and than Officially Licensed Retail Products not publicly available, i.e., Confidential 225.296(c)(1) on August 23, 2012, and to (OLRP) Business Information (CBI) or other Section 225.295(b) and Section Mail Service Promotion information whose disclosure is Officially Licensed Retail Products (OLRP) restricted by statute. Certain other 225.296(a)(2) on April 4, 2013. IEPA Passport Photo Service material, such as copyrighted material, submitted these variances as revisions Photocopying Service is not placed on the Internet and will be to the Illinois regional haze SIP on May Rental, Leasing, Licensing or other Non- publicly available only in hard copy 16, 2013, and August 18, 2014. EPA Sale Disposition of Tangible Property form. Publicly available docket proposed to approve these variances on Training Facilities and Related Services materials are available either April 23, 2015 (80 FR 22662). EPA USPS Electronic Postmark (EPM) Program electronically through received no comments on the proposed Market Tests * www.regulations.gov or in hard copy at action. Metro Post the Environmental Protection Agency, II. What action is EPA taking? International Merchandise Return Service Region 5, Air and Radiation Division, 77 EPA is finalizing approval of the (IMRS)—Non-Published Rates West Jackson Boulevard, Chicago, Customized Delivery Midwest Generation variances Illinois 60604. This facility is open from submitted by IEPA on May 16, 2013, Ruth Ann Abrams, 8:30 a.m. to 4:30 p.m., Monday through and August 18, 2014, as revisions to the Friday, excluding Federal holidays. We Illinois regional haze SIP. Acting Secretary. recommend that you telephone [FR Doc. 2015–17685 Filed 7–17–15; 8:45 am] Kathleen D’Agostino, Environmental III. Incorporation by Reference BILLING CODE 7710–FW–P Engineer, at (312) 886–1767 before In this rule, EPA is finalizing visiting the Region 5 office. regulatory text that includes FOR FURTHER INFORMATION CONTACT: incorporation by reference. In Kathleen D’Agostino, Environmental accordance with requirements of 1 CFR Engineer, Attainment Planning and 51.5, EPA is finalizing the incorporation Maintenance Section, Air Programs by reference of the Illinois Regulations Branch (AR–18J), Environmental described in the amendments to 40 CFR Protection Agency, Region 5, 77 West part 52 set forth below. EPA has made, Jackson Boulevard, Chicago, Illinois and will continue to make, these

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documents generally available or in any other area where EPA or an § 52.720 Identification of plan. electronically through Indian tribe has demonstrated that a * * * * * www.regulations.gov and/or in hard tribe has jurisdiction. In those areas of (c) * * * copy at the appropriate EPA office (see Indian country, the rule does not have (205) On May 16, 2013, and August the ADDRESSES section of this preamble tribal implications and will not impose 18, 2014, Illinois submitted variances to for more information). substantial direct costs on tribal its regional haze state implementation governments or preempt tribal law as plan affecting the following Midwest IV. Statutory and Executive Order specified by Executive Order 13175 (65 Generation, LLC facilities: Crawford Reviews FR 67249, November 9, 2000). Generating Station (Cook County), Joliet Under the Clean Air Act (CAA), the The Congressional Review Act, 5 Generating Station (Will County), Administrator is required to approve a U.S.C. 801 et seq., as added by the Small Powerton Generating Station (Tazewell SIP submission that complies with the Business Regulatory Enforcement County), Waukegan Generating Station provisions of the CAA and applicable Fairness Act of 1996, generally provides (Lake County), and Will County Federal regulations. 42 U.S.C. 7410(k); that before a rule may take effect, the Generating Station (Will County). 40 CFR 52.02(a). Thus, in reviewing SIP agency promulgating the rule must (i) Incorporation by Reference. (A) submissions, EPA’s role is to approve submit a rule report, which includes a Illinois Pollution Control Board Order state choices, provided that they meet copy of the rule, to each House of the PCB 12–121, adopted on August 23, the criteria of the CAA. Accordingly, Congress and to the Comptroller General 2012; Certificate of Acceptance, dated this action merely approves state law as of the United States. EPA will submit a August 24, 2012, filed with the Illinois meeting Federal requirements and does report containing this action and other Pollution Control Board Clerk’s Office not impose additional requirements required information to the U.S. Senate, August 27, 2012. beyond those imposed by state law. For the U.S. House of Representatives, and (B) Illinois Pollution Control Board that reason, this action: the Comptroller General of the United Order PCB 13–24, adopted on April 4, • Is not a ‘‘significant regulatory States prior to publication of the rule in 2013; Certificate of Acceptance, dated action’’ subject to review by the Office the Federal Register. A major rule May 16, 2013, filed with the Illinois of Management and Budget under cannot take effect until 60 days after it Pollution Control Board Clerk’s Office Executive Orders 12866 (58 FR 51735, is published in the Federal Register. May 17, 2013. October 4, 1993) and 13563 (76 FR 3821, This action is not a ‘‘major rule’’ as [FR Doc. 2015–17662 Filed 7–17–15; 8:45 am] January 21, 2011); defined by 5 U.S.C. 804(2). BILLING CODE 6560–50–P • Does not impose an information Under section 307(b)(1) of the CAA, collection burden under the provisions petitions for judicial review of this of the Paperwork Reduction Act (44 action must be filed in the United States ENVIRONMENTAL PROTECTION U.S.C. 3501 et seq.); Court of Appeals for the appropriate AGENCY • Is certified as not having a circuit by September 18, 2015. Filing a significant economic impact on a petition for reconsideration by the 40 CFR Part 52 Administrator of this final rule does not substantial number of small entities [EPA–R06–OAR–2013–0542; FRL–9930–44– under the Regulatory Flexibility Act (5 affect the finality of this action for the Region–6] U.S.C. 601 et seq.); purposes of judicial review nor does it • Does not contain any unfunded extend the time within which a petition Approval and Promulgation of mandate or significantly or uniquely for judicial review may be filed, and Implementation Plans; Texas; affect small governments, as described shall not postpone the effectiveness of Revisions to the New Source Review in the Unfunded Mandates Reform Act such rule or action. This action may not State Implementation Plan; Flexible of 1995 (Pub. L. 104–4); be challenged later in proceedings to Permit Program • Does not have Federalism enforce its requirements. (See section implications as specified in Executive 307(b)(2).) AGENCY: Environmental Protection Agency (EPA). Order 13132 (64 FR 43255, August 10, List of Subjects in 40 CFR Part 52 1999); ACTION: Final rule. • Is not an economically significant Environmental protection, Air SUMMARY: The EPA is fully approving regulatory action based on health or pollution control, Incorporation by revisions to the Texas New Source safety risks subject to Executive Order reference, Intergovernmental relations, Review (NSR) State Implementation 13045 (62 FR 19885, April 23, 1997); Particulate matter, Reporting and • Is not a significant regulatory action recordkeeping requirements, Sulfur Plan (SIP) to establish the Texas Minor subject to Executive Order 13211 (66 FR oxides. NSR Flexible Permits Program (FPP), submitted by the Texas Commission on 28355, May 22, 2001); Dated: June 19, 2015. • Is not subject to requirements of Environmental Quality (TCEQ). The Susan Hedman, approval was predicated on the TCEQ Section 12(d) of the National Regional Administrator, Region 5. Technology Transfer and Advancement meeting its commitment outlined in its Act of 1995 (15 U.S.C. 272 note) because 40 CFR part 52 is amended as follows: letter dated December 9, 2013, to adopt certain minor clarifications to the application of those requirements would PART 52—APPROVAL AND be inconsistent with the CAA; and Flexible Permit Program (FPP) by • PROMULGATION OF November 30, 2014. The TCEQ Does not provide EPA with the IMPLEMENTATION PLANS discretionary authority to address, as submitted the revised program rules to meet its commitment on July 31, 2014. appropriate, disproportionate human ■ 1. The authority citation for part 52 health or environmental effects, using continues to read as follows: The EPA is finalizing this action under practicable and legally permissible section 110 of the Clean Air Act (CAA). Authority: 42 U.S.C. 7401 et seq. methods, under Executive Order 12898 DATES: This final rule will be effective (59 FR 7629, February 16, 1994). ■ 2. Section 52.720 is amended by August 19, 2015. In addition, the SIP is not approved adding paragraph (c)(205) to read as ADDRESSES: The EPA has established a to apply on any Indian reservation land follows: docket for this action under Docket ID

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No. EPA–R06–OAR–2013–0542. All rulemaking properly structured the has satisfied all the elements of the documents in the docket are listed in rules within and according to the EPA’s final conditional approval (79 FR the http://www.regulations.gov index. rulemaking requirements of the Texas 40666, July 14, 2014). The TCEQ Although listed in the index, some Administrative Procedure Act and the submitted on July 31, 2014, the information is not publicly available. Texas Administrative Code. The EPA following rules: 30 TAC Sections E.g., Confidential Business Information proposed full approval of the FPP (79 116.13, 116.710, 116.711(1), (2)(A)(B) or other information the disclosure of FR 7875, December 31, 2014) based on and (C)(i) and (ii), (D)–(J), and (L)–(N); which is restricted by the statute. its determination that the SIP revisions 116.715(a)–(e) and (f)(1) and (2)(B); Certain other material such as complied with section 110(k) of the 116.716; 116.717; 116.718; 116.721; and copyrighted material, will be publicly Federal Clean Air Act (the Act or CAA) 116.765. available only in hard copy. Publicly and was consistent with the EPA’s Response 2: The EPA appreciates the available docket materials are available regulations and policies. These support for our final approval of the either electronically in http:// revisions supported this action to rule. No changes were made to the final www.regulations.gov or in hard copy at convert the approved conditional FPP to rule as a result of this comment. the Air Permits Section (6PD–R), a fully approved FPP. The EPA Comment 3: The EIP stated the Environmental Protection Agency, 1445 reopened the public notice period for an following: ‘‘this full approval action is Ross Avenue, Suite 1200, Dallas, Texas additional 30 days (80 FR 21199, April non-substantive, it is not the agency 75202–2733. While all documents in the 17, 2015), due to items being action we seek to, or intend to, docket are listed in the index, some inadvertently omitted from the docket challenge.’’ EIP did resubmit their April information may be publicly available during the public notice period 4, 2014, comments on the proposed only at the hard copy location (e.g., beginning December 31, 2014. conditional approval (Attachment A), copyrighted material), and some may II. Response to Comments and their January 27, 2015, Fifth Circuit not be publicly available at either Court of Appeals brief (Attachment B). location (e.g., CBI). The EPA proposed an initial comment period of 30 days. We received Response 3: The EIP did not submit FOR FURTHER INFORMATION CONTACT: Ms. comments on the substance of this Stephanie Kordzi, telephone 214–665– comments from 3 organizations during the initial comment period as follows: action, which addressed the rules being 7520; email address kordzi.stephanie@ properly structured within and epa.gov. The TCEQ, Baker Botts, and the Environmental Integrity Project (EIP) on according to the rulemaking SUPPLEMENTARY INFORMATION: behalf of the Environmental Justice requirements of the Texas Throughout this document whenever Advocacy Services, Community in Administrative Procedure Act and the ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean Power & Development Association, Texas Administrative Code. The EPA the EPA. Citizens for Environmental Justice, Air addressed the April 4, 2014, comments that the EIP resubmitted in its response Table of Contents Alliance Houston, Texas Campaign for the Environment, and the Texas Impact. to comments contained in the final I. Background All comments previously submitted conditional approval. (79 FR 40666, July II. Response to Comments under the first public notice for this 14, 2014). Further, the Brief of III. When is this action effective? action are being responded to as Respondent U.S. Environmental IV. Final Action Protection Agency, Case No. 14–60649, V. Incorporation by Reference appropriate and the commenters were VI. Statutory and Executive Order Reviews informed that they did not need to filed on March 2, 2015, replies to the resubmit them during the reopened issues raised by EIP in its January 27, I. Background public notice period. The EPA did not 2015, Fifth Circuit Court of Appeals On July 14, 2014, the EPA took final receive any additional comments during brief. EPA is incorporating by reference rulemaking action conditionally the reopened public notice period. All the EPA’s Reply Brief in this response approving revisions to the Texas NSR comment letters can be found in their to the EIP’s resubmitted comments. It SIP to establish the Texas Minor NSR entirety in the docket for this can be found in the Docket to this Flexible Permits Program, submitted by rulemaking. action. the TCEQ. The EPA’s proposed Comment 1: Baker Botts stated they III. When is this action effective? conditional approval was published in supported EPA’s proposed approval of 79 FR 8368, February 12, 2014. The the Texas FPP. They believe it complies The EPA has determined that today’s conditional approval was predicated on with the federal Clean Air Act. Further final approval of the Texas FPP is a commitment from TCEQ in a letter they believe that flexible permits are an subject to the requirement to delay a dated December 9, 2013, to adopt essential part of the Texas air quality rule’s effective date until 30 days after certain minor clarifications to the FPP permitting program and the program has publication in 5 U.S.C. 553(d) of the by November 30, 2014. (79 FR 40666, contributed to marked and sustained APA; therefore, the rule, will become July 14, 2014). improvements in Texas air quality. They effective 30 days after publication. On September 12, 2014, submitted information from TCEQ’s IV. Final Action Environmental Integrity Project, et al., Web site which documents reductions filed a Petition for Review challenging in ozone and other pollutants in Texas. After careful consideration of the EPA conditional approval of the FPP Response 1: The EPA appreciates the submitted revisions to meet the with the Fifth Circuit Court of Appeals. support for our final approval. No requirements of the conditional The U.S. Department of Justice changes were made to the final rule as approval and of the comments received submitted the response to the Petition, a result of this comment. and the responses to each comment Case No. 14–60649, for the EPA on Comment 2: The TCEQ concurs with provided above, and under section 110 March 2, 2015. The Appeal is on-going the EPA’s proposed determination that of the Act, the EPA is finalizing our as of the date of publication of this the TCEQ fulfilled its December 9, 2013, proposal to convert the conditional notice. commitment to submit the FPP SIP approval of the FPP to a full, final On July 31, 2014, the TCEQ submitted revision. The TCEQ also concurs with action. Further, we have found it revisions to the Texas NSR SIP. The EPA’s proposed finding that the TCEQ complies with section 110(l) of the Act.

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We are making the following revisions those imposed by state law. For that Congress and to the Comptroller General to the Texas SIP: reason, this action: of the United States. EPA will submit a • Revisions to 30 TAC Section • Is not a ‘‘significant regulatory report containing this action and other 116.13—Flexible Permit Definitions. action’’ subject to review by the Office required information to the U.S. Senate, • Revisions to 30 TAC Section of Management and Budget under the U.S. House of Representatives, and 116.710—Applicability. Executive Orders 12866 (58 FR 51735, the Comptroller General of the United • Revisions to 30 TAC Section October 4, 1993) and 13563 (76 FR 3821, States prior to publication of the rule in 116.711(1), (2)(A), (B) and (C)(i) and (ii), January 21, 2011); the Federal Register. A major rule (D)–(J), and (L)–(N)—Flexible Permit • Does not impose an information cannot take effect until 60 days after it Application. collection burden under the provisions is published in the Federal Register. • Revisions to 30 TAC Section of the Paperwork Reduction Act (44 This action is not a ‘‘major rule’’ as 116.715(a)–(e) and (f)(1) and (2)(B)— U.S.C. 3501 et seq.); defined by 5 U.S.C. 804(2). General and Special Conditions. • Is certified as not having a Under section 307(b)(1) of the Clean • Revisions to 30 TAC Section significant economic impact on a Air Act, petitions for judicial review of 116.716—Emission Caps and Individual substantial number of small entities this action must be filed in the United Emission Limitations. under the Regulatory Flexibility Act (5 States Court of Appeals for the • Revisions to 30 TAC Section U.S.C. 601 et seq.); appropriate circuit by September 18, • 116.717—Implementation Schedule for Does not contain any unfunded 2015. Filing a petition for Additional Controls. mandate or significantly or uniquely reconsideration by the Administrator of • Revisions to 30 TAC Section affect small governments, as described this final rule does not affect the finality 116.718—Significant Emission Increase. in the Unfunded Mandates Reform Act of this action for the purposed of • Revisions to 30 TAC Section of 1995 (Pub. L. 104–4); judicial review nor does it extend the • 116.720—Limitation of Physical and Does not have Federalism time within which a petition for judicial Operational Changes. implications as specified in Executive review may be filed, and shall not • Revisions to 30 TAC Section Order 13132 (64 FR 43255, August 10, postpone the effectiveness of such rule 116.721—Amendments and Alterations. 1999); or action. This action may not be • • Revisions to 30 TAC Section Is not an economically significant challenged later in proceedings to 116.740(a)—Public Notice. regulatory action based on health or enforce its requirements. (See section • Revisions to 30 TAC Section safety risks subject to Executive Order 307(b)(2).) 116.750—Flexible Permit Fee. Revisions 13045 (62 FR 19885, April 23, 1997); to 30 TAC Section 116.765— • Is not a significant regulatory action List of Subjects in 40 CFR Part 52 Compliance Schedule. subject to Executive Order 13211 (66 FR Environmental protection, Air The EPA has determined that the 28355, May 22, 2001); • pollution control, Carbon monoxide, revised rule satisfies the December 9, Is not subject to requirements of Incorporation by reference, 2013, Commitment Letter which was section 12(d) of the National Intergovernmental relations, Lead, submitted in a timely manner. Technology Transfer and Advancement Nitrogen dioxide, Ozone, Particulate Act of 1995 (15 U.S.C. 272 note) because V. Incorporation by Reference matter, Reporting and recordkeeping application of those requirements would requirements, Sulfur oxides, Volatile In this rule, we are finalizing be inconsistent with the Clean Air Act; organic compounds. regulatory text that includes and incorporation by reference. In • Does not provide EPA with the Dated: June 30, 2015. accordance with the requirements of 1 discretionary authority to address, as Ron Curry, CFR 51.5, we are finalizing the appropriate, disproportionate human Regional Administrator, Region 6. incorporation by reference of the health or environmental effects, using 40 CFR part 52 is amended as follows: revisions to the Texas regulations as practicable and legally permissible described in the Final Action section methods, under Executive Order 12898 PART 52—APPROVAL AND above. We have made, and will continue (59 FR 7629, February 16, 1994). PROMULGATION OF to make, these documents generally In addition, the SIP is not approved IMPLEMENTATION PLANS available electronically through to apply on any Indian reservation land www.regulations.gov and/or in hard or in any other area where EPA or an ■ 1. The authority citation for part 52 copy at the EPA Region 6 office. Indian tribe has demonstrated that a continues to read as follows: tribe has jurisdiction. In those areas of Authority: 42 U.S.C. 7401 et seq. VI. Statutory and Executive Order Indian country, the rule does not have Reviews tribal implications and will not impose Subpart SS—Texas Under the CAA, the Administrator is substantial direct costs on tribal required to approve a SIP submission governments or preempt tribal law as ■ 2. In § 52.2270(c), the table titled that complies with the provisions of the specified by Executive Order 13175 (65 ‘‘EPA Approved Regulations in the CAA and applicable Federal regulations. FR 67249, November 9, 2000). Texas SIP’’ is amended by revising the See, 42 U.S.C. 7410(k); 40 CFR 52.02(a). The Congressional Review Act, 5 entries for sections 116.13, 116.710, Thus, in reviewing SIP submissions, the U.S.C. 801 et seq., as added by the Small 116,711, 116.715, 116.716, 116.717, EPA’s role is to approve state choices, Business Regulatory Enforcement 116.718, 116.720, 116.721, 116.740, provided that they meet the criteria of Fairness Act of 1996, generally provides 116.750, and 116.765 to read as follows: the CAA. Accordingly, this action that before a rule may take effect, the merely approves state law as meeting agency promulgating the rule must § 52.2270 Identification of plan. Federal requirements and does not submit a rule report, which includes a * * * * * impose additional requirements beyond copy of the rule, to each House of the (c) * * *

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EPA APPROVED REGULATIONS IN THE TEXAS SIP

State State Title/Subject approval/ EPA Approval date Explanation citation Submittal date

*******

Chapter 116 (Reg 6)—Control of Air Pollution by Permits for New Construction or Modification

Subchapter A—Definitions

******* Section 116.13 ..... Flexible Permit Definitions ...... 7/31/2014 7/20/2015 [Insert Federal Reg- ister citation].

*******

Subchapter G—Flexible Permits

Section 116.710 ... Applicability ...... 7/31/2014 7/20/2015 [Insert Federal Reg- ister citation]. Section 116.711 ... Flexible Permit Application ...... 7/31/2014 7/20/2015 [Insert Federal Reg- SIP includes 30 TAC 116.711(1), ister citation]. (2)(A), (B) and (C)(i) and (ii), (D)–(J), and (L)–(N)

******* Section 116.715 ... General and Special Conditions .. 7/31/2014 7/20/2015 [Insert Federal Reg- SIP includes 30 TAC 116.715(a)– ister citation]. (e) and (f)(1) and (2)(B) Section 116.716... Emission Caps and Individual 7/31/2014 7/20/2015 [Insert Federal Reg- Emission Limitations. ister citation]. Section 116.717 ... Implementation Schedule for Ad- 7/31/2014 7/20/2015 [Insert Federal Reg- ditional Controls. ister citation]. Section 116.718 ... Significant Emission Increase ...... 7/31/2014 7/20/2015 [Insert Federal Reg- ister citation]. Section 116.720 ... Limitation on Physical and Oper- 7/31/2014 7/20/2015 [Insert Federal Reg- ational Changes. ister citation]. Section 116.721 ... Amendments and Alterations ...... 7/31/2014 7/20/2015 [Insert Federal Reg- ister citation].

******* Section 116.740 ... Public Notice and Comment ...... 7/31/2014 7/20/2015 [Insert Federal Reg- SIP includes 30 TAC Section ister citation]. 116.740(a). Section 116.750 ... Flexible Permit Fee ...... 7/31/2014 7/20/2015 [Insert Federal Reg- ister citation].

******* Section 116.765 ... Compliance Schedule ...... 7/31/2014 7/20/2015 [Insert Federal Reg- SIP includes 30 TAC Section ister citation]. 116.765(b) and (c).

*******

* * * * * ACTION: Direct final rule. adverse comment August 19, 2015. If [FR Doc. 2015–17472 Filed 7–17–15; 8:45 am] the EPA receives such comment, the BILLING CODE 6560–50–P SUMMARY: The EPA is taking a direct EPA will publish a timely withdrawal in final action to approve revisions to the the Federal Register informing the Texas State Implementation Plan (SIP) public that this rule will not take effect. ENVIRONMENTAL PROTECTION related to Low Reid Vapor Pressure ADDRESSES: Submit your comments, AGENCY (RVP) Fuel Regulations that were identified by Docket ID No. EPA–R06– submitted by the State of Texas on 40 CFR Part 52 OAR–2015–0027, by one of the January 5, 2015. The EPA evaluated the following methods: SIP submittal from Texas and (1) www.regulations.gov: Follow the [EPA–R06–OAR–2015–0027; FRL–9930–79– determined these revisions are Region–6] on-line instructions. consistent with the requirements of the (2) Email: Ms. Tracie Donaldson at Clean Air Act (Act or CAA). The EPA Approval and Promulgation of [email protected]. is approving this action under the Implementation Plans; Texas; Low (3) Mail or Delivery: Ms. Tracie federal CAA. Reid Vapor Pressure Fuel Regulations Donaldson, Air Permits Section (6PD– DATES: This direct final rule is effective R), Environmental Protection Agency, AGENCY: Environmental Protection on September 18, 2015 without further 1445 Ross Avenue, Suite 1200, Dallas, Agency (EPA). notice, unless the EPA receives relevant Texas 75202–2733.

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Instructions: Direct your comments to I. Background we included it in the SIP on April 26, Docket ID No. EPA–R06–OAR–2015– 2001 (66 FR 20927, 20931). Our action A. CAA and SIPs 0027. EPA’s policy is that all comments today corrects this error by removing received will be included in the public Section 110 of the CAA requires states section 114.306(c) from the SIP. docket without change and may be to develop and submit to the EPA a SIP The amendments remove the made available online at http:// to ensure that state air quality meets prohibition on the increased use of www.regulations.gov, including any National Ambient Air Quality Standards methyl-tertiary-butyl-ether (MTBE) in personal information provided, unless (NAAQS). The NAAQS currently gasoline to conform to the low RVP the comment includes information address six criteria pollutants: Carbon gasoline requirements; remove the claimed to be Confidential Business monoxide, nitrogen dioxide, ozone, requirements for gasoline producers and Information (CBI) or other information lead, particulate matter, and sulfur importers that supply low RVP gasoline the disclosure of which is restricted by dioxide. Each federally-approved SIP to the affected counties; remove annual statute. Do not submit information protects air quality primarily by reporting and certification requirements through http://www.regulations.gov or addressing air pollution at its point of on the use of MTBE in low RVP email, if you believe that it is CBI or origin through air pollution regulations gasoline; and make other non- otherwise protected from disclosure. and control strategies. The EPA- substantive clarifying changes as needed The http://www.regulations.gov Web approved SIP provisions and control for accuracy and consistency. strategies are federally enforceable. site is an ‘‘anonymous access’’ system, III. Final Action which means that the EPA will not States revise the SIP as needed and know your identity or contact submit revisions to the EPA for review For the reasons stated above and in information unless you provide it in the and approval. the TSD, the EPA is taking direct final action to approve revisions to the Texas body of your comment. If you send an B. SIP Revision Submitted on January 5, SIP pertaining to Low RVP Fuel email comment directly to the EPA 2015 regulations. We are approving the without going through http:// On September 10, 2014, Texas revisions to the Texas SIP under section www.regulations.gov, your email Commission on Environmental Quality 110 of the Act. Each revision to an address will be automatically captured (TCEQ) adopted revisions to 30 Texas implementation plan submitted by a and included as part of the comment Administrative Code (TAC) Chapter State under this chapter shall be that is placed in the public docket and 114, Control of Air Pollution from Motor adopted by such State after reasonable made available on the Internet. If you Vehicles, Subchapter H. Low Emission notice and public hearing. The submit an electronic comment, the EPA Fuels, Division 1. Gasoline Volatility. Administrator shall not approve a recommends that you include your This review will determine if the revision of a plan if the revision would name and other contact information in changes to the Texas SIP are consistent interfere with any applicable the body of your comment along with with the requirements of the Clean Air requirement concerning attainment and any disk or CD–ROM submitted. If the Act and EPA’s policy and guidance. reasonable further progress. We are EPA cannot read your comment due to publishing this rule without prior technical difficulties and cannot contact II. EPA’s Evaluation proposal because we view this as a you for clarification, the EPA may not As detailed in the Technical Support noncontroversial amendment and be able to consider your comment. Document (TSD) accompanying this anticipate no relevant adverse Electronic files should avoid the use of action, the TCEQ submitted a SIP comments. However, in the proposed special characters and any form of revision to the Low RVP Fuels rules section of this Federal Register encryption and should be free of any regulations. In this adoption, TCEQ publication, we are publishing a defects or viruses. For additional amended sections 114.306, 114.307, separate document that will serve as the information about the EPA’s public 114.309 and deleted section 114.304. proposal to approve the SIP revision if docket, visit the EPA Docket Center The amendments to the Regional Low relevant adverse comments are received. homepage at http://www.epa.gov/ RVP Gasoline Regulations remove This rule will be effective on September epahome/dockets.htm. obsolete requirements that provide no 18, 2015 without further notice unless Docket: The index to the docket for benefit to the state and are not necessary we receive relevant adverse comment by this action is available electronically at for the implementation and enforcement August 19, 2015. If we receive relevant www.regulations.gov and in hard copy of the primary gasoline volatility control adverse comments, we will publish a at EPA Region 6, 1445 Ross Avenue, requirements of the rule. In addition, timely withdrawal in the Federal Suite 700, Dallas, Texas. While all the proposal would provide regulatory Register informing the public that the documents in the docket are listed in consistency between the Chapter 114 rule will not take effect. We will address the index, some information may be gasoline volatility requirements and the all public comments in a subsequent publicly available only at the hard copy El Paso Low RVP Gasoline final rule based on the proposed rule. location (e.g., copyrighted material), and requirements, specified in the 30 TAC We will not institute a second comment some may not be publicly available at Chapter 115 regulations in §§ 115.252, period on this action. Any parties either location (e.g., CBI). 115.253, 115.255–115.257, and 115.259, interested in commenting must do so which do not prohibit the use of MTBE FOR FURTHER INFORMATION CONTACT: Ms. now. Please note that if we receive and do not require registration and Tracie Donaldson, (214) 665–6633, adverse comment on an amendment, annual reporting. [email protected]. To inspect paragraph, or section of this rule and if In addition, pursuant to section the hard copy materials, please schedule that provision may be severed from the 110(k)(6) of the CAA, 30 TAC section an appointment with Ms. Donaldson or remainder of the rule, we may adopt as 114.306(c) is being removed from the Mr. Bill Deese at 214–665–7253. final those provisions of the rule that are SIP. This section was inadvertently not the subject of an adverse comment. SUPPLEMENTARY INFORMATION: approved into the SIP by a previous Throughout this document wherever action. In its April 25, 2000 SIP IV. Incorporation by Reference ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean submittal, Texas specifically asked us to In this direct final rule, the EPA is the EPA. not include 114.306(c) into the SIP, but finalizing regulatory text that includes

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incorporation by reference. In • Is not an economically significant ‘‘major rule’’ as defined by 5 U.S.C. accordance with requirements of 1 CFR regulatory action based on health or 804(2). 51.5, the EPA is finalizing the safety risks subject to Executive Order Under section 307(b)(1) of the CAA, incorporation by reference of the Texas 13045 (62 FR 19885, April 23, 1997); petitions for judicial review of this low RVP fuel requirements described in • Is not a significant regulatory action action must be filed in the United States the Final Action section above. The EPA subject to Executive Order 13211 (66 FR Court of Appeals for the appropriate has made, and will continue to make, 28355, May 22, 2001); circuit by September 18, 2015. Filing a these documents generally available • Is not subject to requirements of petition for reconsideration by the electronically through section 12(d) of the National Administrator of this final rule does not www.regulations.gov and/or in hard Technology Transfer and Advancement affect the finality of this action for the copy at the EPA Region 6 office. Act of 1995 (15 U.S.C. 272 note) because purposed of judicial review nor does it V. Statutory and Executive Order application of those requirements would extend the time within which a petition Reviews be inconsistent with the Clean Air Act; for judicial review may be filed, and and shall not postpone the effectiveness of Under the CAA, the Administrator is • Does not provide the EPA with the such rule or action. This action may not required to approve a SIP submission discretionary authority to address, as be challenged later in proceedings to that complies with the provisions of the appropriate, disproportionate human enforce its requirements. (See section Act and applicable federal regulations. health or environmental effects, using 307(b)(2).) 42 U.S.C. 7410(k); 40 CFR 52.02(a). practicable and legally permissible Thus, in reviewing SIP submissions, the methods, under Executive Order 12898 List of Subjects in 40 CFR Part 52 EPA’s role is to approve state choices, (59 FR 7629, February 16, 1994). Environmental protection, Air provided that they meet the criteria of The SIP is not approved to apply on the CAA. Accordingly, this action pollution control, Incorporation by any Indian reservation land or in any reference, Intergovernmental relations, merely approves state law as meeting other area where the EPA or an Indian Federal requirements and does not Ozone, Reporting and recordkeeping tribe has demonstrated that a tribe has impose additional requirements beyond requirements, Sulfur oxides. jurisdiction. In those areas of Indian those imposed by state law. For that Dated: July 7, 2015. country, the rule does not have tribal reason, this action: Ron Curry • implications and will not impose Is not a ‘‘significant regulatory Regional Administrator, Region 6. action’’ subject to review by the Office substantial direct costs on tribal of Management and Budget under governments or preempt tribal law as 40 CFR part 52 is amended as follows: Executive Order 12866 (58 FR 51735, specified by Executive Order 13175 (65 October 4, 1993) and 13563 (76 FR 3821, FR 67249, November 9, 2000). PART 52—APPROVAL AND January 21, 2011); The Congressional Review Act, 5 PROMULGATION OF • Does not impose an information U.S.C. 801 et seq., as added by the Small IMPLEMENTATION PLANS collection burden under the provisions Business Regulatory Enforcement of the Paperwork Reduction Act (44 Fairness Act of 1996, generally provides ■ 1. The authority citation for part 52 U.S.C. 3501 et seq.); that before a rule may take effect, the continues to read as follows: • Is certified as not having a agency promulgating the rule must Authority: 42 U.S.C. 7401 et seq. significant economic impact on a submit a rule report, which includes a substantial number of small entities copy of the rule, to each House of the Subpart SS—Texas under the Regulatory Flexibility Act (5 Congress and to the Comptroller General U.S.C. 601 et seq.); of the United States. The EPA will ■ 2. In § 52.2270(c), the table titled • Does not contain any unfunded submit a report containing this action ‘‘EPA Approved Regulations in the mandate or significantly or uniquely and other required information to the Texas SIP’’ is amended by removing the affect small governments, as described U.S. Senate, the U.S. House of entry for section 114.304 and revising in the Unfunded Mandates Reform Act Representatives, and the Comptroller the entries for sections 114.306, 114.307 of 1995 (Pub. L. 104–4); General of the United States prior to and 114.309 to read as follows: • Does not have federalism publication of the rule in the Federal implications as specified in Executive Register. A major rule cannot take effect § 52.2270 Identification of plan. Order 13132 (64 FR 43255, August 10, until 60 days after it is published in the * * * * * 1999); Federal Register. This action is not a (c) * * *

EPA APPROVED REGULATIONS IN THE TEXAS SIP

State approval/ EPA State citation Title/Subject submittal approval Explanation date date

*******

Chapter 114—Control of Air Pollution From Motor Vehicle Fuels

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EPA APPROVED REGULATIONS IN THE TEXAS SIP—Continued

State approval/ EPA State citation Title/Subject submittal approval Explanation date date

*******

Subchapter H—Low Emission Fuels

Division 1: Gasoline Volatility

******* 114.306 ...... Recordkeeping Require- 4/25/2000 4/26/2001, 66 FR 20927 ...... Not in SIP: 114.306(c) ments. 114.307 ...... Exemptions ...... 9/10/2014 7/20/2015, [Insert Federal Register citation] ...... 114.309 ...... Affected Counties ...... 9/10/2014 7/20/2015, [Insert Federal Register citation] ......

*******

* * * * * OAR–2015–0368, by one of the ‘‘anonymous access’’ system, which [FR Doc. 2015–17743 Filed 7–17–15; 8:45 am] following methods: means EPA will not know your identity BILLING CODE 6560–50–P 1. www.regulations.gov: Follow the or contact information unless you on-line instructions for submitting provide it in the body of your comment. comments. If you send an email comment directly ENVIRONMENTAL PROTECTION 2. Email: [email protected]. to EPA without going through AGENCY 3. Fax: 404–562–9019. www.regulations.gov, your email 4. Mail: ‘‘EPA–R04–OAR–2015–0368’’ address will be automatically captured 40 CFR Part 52 Air Regulatory Management Section and included as part of the comment [EPA–R04–OAR–2015–0368; FRL–9930–76– (formerly the Regulatory Development that is placed in the public docket and Region 4] Section), Air Planning and made available on the Internet. If you Implementation Branch (formerly the submit an electronic comment, EPA Approval and Promulgation of Air Planning Branch), Air, Pesticides recommends that you include your Implementation Plans; North Carolina; and Toxics Management Division, U.S. name and other contact information in Nitrogen Dioxide and Sulfur Dioxide Environmental Protection Agency, the body of your comment and with any National Ambient Air Quality Region 4, 61 Forsyth Street SW., disk or CD–ROM you submit. If EPA Standards Changes Atlanta, Georgia 30303–8960. cannot read your comment due to 5. Hand Delivery or Courier: Lynorae technical difficulties and cannot contact AGENCY: Environmental Protection Benjamin, Chief, Air Regulatory you for clarification, EPA may not be Agency (EPA). Management Section, Air Planning and able to consider your comment. ACTION: Direct final rule. Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Electronic files should avoid the use of SUMMARY: The Environmental Protection Environmental Protection Agency, special characters, any form of Agency (EPA) is taking direct final Region 4, 61 Forsyth Street, SW., encryption, and be free of any defects or action to approve the State Atlanta, Georgia 30303–8960. Such viruses. For additional information Implementation Plan (SIP) revision deliveries are only accepted during the about EPA’s public docket visit the EPA submitted by the State of North Regional Office’s normal hours of Docket Center homepage at http:// Carolina, through the North Carolina operation. The Regional Office’s official www.epa.gov/epahome/dockets.htm. Department of Environment and Natural hours of business are Monday through Docket: All documents in the Resources on August 13, 2012, Friday, 8:30 a.m. to 4:30 p.m., excluding electronic docket are listed in the pertaining to definition changes for the Federal holidays. www.regulations.gov index. Although Nitrogen Dioxide (NO2) and Sulfur Instructions: Direct your comments to listed in the index, some information is Dioxide (SO2) National Ambient Air Docket ID No. ‘‘EPA–R04–OAR–2015– not publicly available, i.e., CBI or other Quality Standards (NAAQS). EPA is 0368’’. EPA’s policy is that all information whose disclosure is approving this SIP revision because the comments received will be included in restricted by statute. Certain other State has demonstrated that it is the public docket without change and material, such as copyrighted material, consistent with the Clean Air Act (CAA may be made available online at is not placed on the Internet and will be or Act). www.regulations.gov, including any publicly available only in hard copy DATES: This direct final rule is effective personal information provided, unless form. Publicly available docket on September 18, 2015 without further the comment includes information materials are available either notice, unless EPA receives relevant claimed to be Confidential Business electronically in www.regulations.gov or adverse comment by August 19, 2015. If Information (CBI) or other information in hard copy at the Air Regulatory EPA receives such comment, EPA will whose disclosure is restricted by statute. Management Section, Air Planning and publish a timely withdrawal in the Do not submit through Implementation Branch, Air, Pesticides Federal Register informing the public www.regulations.gov or email, and Toxics Management Division, U.S. that this rule will not take effect. information that you consider to be CBI Environmental Protection Agency, ADDRESSES: Submit your comments, or otherwise protected. The Region 4, 61 Forsyth Street, SW., identified by Docket ID No. EPA–R04– www.regulations.gov Web site is an Atlanta, Georgia 30303–8960. EPA

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requests that if at all possible, you B. SO2 received, the public is advised that this contact the person listed in the FOR On June 22, 2010, EPA promulgated a rule will be effective on September 18, FURTHER INFORMATION CONTACT section to 2015 and no further action will be taken revised primary SO2 NAAQS to an schedule your inspection. The Regional hourly standard of 75 ppb based on a 3- on the proposed rule. Please note that if EPA receives Office’s official hours of business are year average of the annual 99th adverse comment on an amendment, Monday through Friday, 8:30 a.m. to percentile of 1-hour daily maximum paragraph, or section of this rule and if 4:30 p.m., excluding Federal holidays. concentrations. See 75 FR 35520. that provision may be severed from the Accordingly, in the August 3, 2012, SIP FOR FURTHER INFORMATION CONTACT: Zuri remainder of the rule, the Agency may submission, North Carolina revised state Farngalo, Air Regulatory Management adopt as final those provisions of the rule 15A NCAC 02D .0402 Sulfur Oxides Section, Air Planning and rule that are not the subject of an to update the primary air quality Implementation Branch, Air, Pesticides adverse comment. and Toxics Management Division, U.S. standard for SO2 to be consistent with Environmental Protection Agency, the SO2 NAAQS that were promulgated V. Statutory and Executive Order Region 4, 61 Forsyth Street SW., by EPA in 2010. EPA has reviewed the Reviews Atlanta, Georgia 30303–8960. The change to North Carolina’s rule for SO2 Under the CAA, the Administrator is telephone number is (404) 562–9152. and has made the determination that required to approve a SIP submission Mr. Farngalo can be reached via these changes are consistent with that complies with the provisions of the electronic mail at farngalo.zuri@ federal regulations. Act and applicable Federal regulations. epa.gov. III. Incorporation by Reference See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, SUPPLEMENTARY INFORMATION: In this rule, EPA is finalizing EPA’s role is to approve state choices, regulatory text that includes I. Background provided that they meet the criteria of incorporation by reference. In the CAA. Accordingly, this action accordance with requirements of 1 CFR Sections 108 and 109 of the CAA merely approves state law as meeting 51.5, EPA is finalizing the incorporate govern the establishment, review, and Federal requirements and does not by reference of NCDENR regulations revision, as appropriate, of the NAAQS impose additional requirements beyond 15A NCAC 02D .0407 Nitrogen Dioxide to protect public health and welfare. those imposed by state law. For that and 15A NCAC 02D .0402 Sulfur Oxides The CAA requires periodic review of the reason, this action: air quality criteria—the science upon effective September 1, 2011, which were • Is not a significant regulatory action which the standards are based—and the revised to be consistent with the current subject to review by the Office of standards themselves. EPA’s regulatory NAAQS. EPA has made, and will Management and Budget under provisions that govern the NAAQS are continue to make, these documents Executive Orders 12866 (58 FR 51735, found at 40 CFR 50—National Primary generally available electronically October 4, 1993) and 13563 (76 FR 3821, and Secondary Ambient Air Quality through www.regulations.gov and/or in January 21, 2011); Standards. In this rulemaking, EPA is hard copy at the appropriate EPA office • does not impose an information proposing to approve North Carolina’s (see the ADDRESSES section of this collection burden under the provisions August 13, 2012, submission amending preamble for more information). of the Paperwork Reduction Act (44 the State’s NAAQS for NO2 and SO2 that IV. Final Action U.S.C. 3501 et seq.); are found at 15A NCAC 02D .0407 and • is certified as not having a .0402. The SIP submittal amending EPA is approving the aforementioned significant economic impact on a North Carolina’s rules to incorporate the changes to the North Carolina SIP, substantial number of small entities NAAQS can be found in the Docket for because they are consistent with EPA’s under the Regulatory Flexibility Act (5 this proposed rulemaking at standards for NO2 and SO2. EPA is U.S.C. 601 et seq.); www.regulations.gov and are publishing this rule without prior • does not contain any unfunded summarized below. proposal because the Agency views this mandate or significantly or uniquely as a noncontroversial submittal and affect small governments, as described II. EPA’s Analysis of North Carolina’s anticipates no adverse comments. in the Unfunded Mandates Reform Act SIP Revision However, in the proposed rules section of 1995 (Pub. L. 104–4); A. NO2 of this Federal Register publication, • does not have Federalism EPA is publishing a separate document implications as specified in Executive On February 9, 2010, EPA that will serve as the proposal to Order 13132 (64 FR 43255, August 10, promulgated a new 1-hour primary approve the SIP revision should adverse 1999); NAAQS for NO2 at a level of 100 parts comments be filed. This rule will be • is not an economically significant per billion (ppb), based on a 3-year effective September 18, 2015 without regulatory action based on health or average of the 98th percentile of the further notice unless the Agency safety risks subject to Executive Order yearly distribution of 1-hour daily receives adverse comments by August 13045 (62 FR 19885, April 23, 1997); maximum concentrations. See 75 FR 19, 2015. • is not a significant regulatory action 6474. Accordingly, in the August 3, If EPA receives such comments, then subject to Executive Order 13211 (66 FR 2012, SIP submission, North Carolina EPA will publish a document 28355, May 22, 2001); revised state rule 15A NCAC 02D .0407 withdrawing the final rule and • is not subject to requirements of Nitrogen Dioxide to update the primary informing the public that the rule will Section 12(d) of the National air quality standard for NO2 to be not take effect. All adverse comments Technology Transfer and Advancement consistent with the NAAQS that were received will then be addressed in a Act of 1995 (15 U.S.C. 272 note) because promulgated by EPA in 2010. EPA has subsequent final rule based on the application of those requirements would reviewed this change to North proposed rule. EPA will not institute a be inconsistent with the CAA; and Carolina’s rule for NO2 and has made second comment period. Parties • does not provide EPA with the the determination that this change is interested in commenting should do so discretionary authority to address, as consistent with federal regulations. at this time. If no such comments are appropriate, disproportionate human

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health or environmental effects, using This action is not a ‘‘major rule’’ as reference, Intergovernmental relations, practicable and legally permissible defined by 5 U.S.C. 804(2). Nitrogen dioxide, Sulfur dioxide, methods, under Executive Order 12898 Under section 307(b)(1) of the CAA, Reporting and recordkeeping (59 FR 7629, February 16, 1994). petitions for judicial review of this requirements. The SIP is not approved to apply on action must be filed in the United States any Indian reservation land or in any Court of Appeals for the appropriate Dated: July 6, 2015. other area where EPA or an Indian tribe circuit by September 18, 2015. Filing a Heather McTeer Toney, has demonstrated that a tribe has petition for reconsideration by the Regional Administrator, Region 4. jurisdiction. In those areas of Indian Administrator of this final rule does not country, the rule does not have tribal affect the finality of this action for the 40 CFR part 52 is amended as follows: implications as specified by Executive purposes of judicial review nor does it Order 13175 (65 FR 67249, November 9, extend the time within which a petition PART 52—APPROVAL AND 2000), nor will it impose substantial for judicial review may be filed, and PROMULGATION OF direct costs on tribal governments or shall not postpone the effectiveness of IMPLEMENTATION PLANS preempt tribal law. such rule or action. Parties with The Congressional Review Act, 5 objections to this direct final rule are ■ 1. The authority citation for part 52 U.S.C. 801 et seq., as added by the Small encouraged to file a comment in continues to read as follows: Business Regulatory Enforcement response to the parallel notice of Authority: 42. U.S.C. 7401 et seq. Fairness Act of 1996, generally provides proposed rulemaking for this action that before a rule may take effect, the published in the proposed rules section Subpart II—North Carolina agency promulgating the rule must of today’s Federal Register, rather than submit a rule report, which includes a file an immediate petition for judicial ■ 2. Section 52.1770(c) is amended copy of the rule, to each House of the review of this direct final rule, so that under Table 1, at Subchapter 2D Air Congress and to the Comptroller General EPA can withdraw this direct final rule Pollution Control Requirements, Section of the United States. EPA will submit a and address the comment in the .0400 Ambient Air Quality Standards by report containing this action and other proposed rulemaking. This action may revising the entries for ‘‘.0402,’’ and required information to the U.S. Senate, not be challenged later in proceedings to ‘‘.0407’’ to read as follows: the U.S. House of Representatives, and enforce its requirements. See section the Comptroller General of the United 307(b)(2). § 52.1770 Identification of plan. States prior to publication of the rule in * * * * * the Federal Register. A major rule List of Subjects in 40 CFR Part 52 cannot take effect until 60 days after it Environmental protection, Air (c) * * * is published in the Federal Register. pollution control, Incorporation by

TABLE 1—EPA APPROVED NORTH CAROLINA REGULATIONS

State effective State citation Title/subject date EPA approval date Explanation

Subchapter 2D Air Pollution Control Requirements

*******

Section .0400 Ambient Air Quality Standards

****** Sect .0402 ...... Sulfur Dioxide ...... 9/1/2011 7/20/2015 [Insert citation of publication].

******* Sect .0407 ...... Nitrogen Dioxide ...... 9/1/2011 7/20/2015 [Insert citation of publication].

*******

* * * * * ENVIRONMENTAL PROTECTION ACTION: Final rule; amendment. [FR Doc. 2015–17683 Filed 7–17–15; 8:45 am] AGENCY SUMMARY: The Environmental Protection BILLING CODE 6560–50–P 40 CFR Part 261 Agency (EPA) is amending the exclusion for International Business [EPA–R01–RCRA–2012–0447; FRL–9930– Machines Corporation (IBM) in Essex 54–Region–1] Junction, Vermont to reflect changes in ownership and name. Hazardous Waste Management DATES: This amendment is effective on System; Identification and Listing of July 20, 2015. Hazardous Waste Amendment FOR FURTHER INFORMATION CONTACT: AGENCY: Environmental Protection Sharon Leitch, RCRA Waste Agency (EPA). Management and UST Section, Office of

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Site Remediation and Restoration, (Mail requirements for annual reporting found the Administrative Procedures Act Code: OSRR07–01), EPA Region 1, 5 in paragraph 3.(B)(iii) of the delisting pursuant to 5 United States Code Post Office Square, Suite 100, Boston, approval. The paragraph currently (U.S.C.) 5531(d). The EPA has MA 02109–3912; telephone number: requires that the annual test report determined that having a proposed rule (617) 918–1647; fax number (617) 918– include the annual testing data and the and public comment on this change is 0647; email address: leitch.sharon@ annual amount of waste in cubic yards unnecessary, as it involves only a epa.gov. disposed of during the calendar year. change in company ownership, and a SUPPLEMENTARY INFORMATION: In this However, as a result of the timing of the clarification, with all of the same document EPA is amending appendix delisting approval, annual testing occurs delisting requirements remaining in IX to part 261 to reflect a change in the during August and September of each effect. year and the reports are submitted to ownership and name of a particular List of Subjects in 40 CFR Part 261 facility. Today’s notice documents the EPA soon thereafter. With this notice transfer of ownership and name change EPA is clarifying that the reporting of Environmental protection, Hazardous by updating appendix IX to incorporate the annual sludge volumes shall occur waste, Recycling, Reporting and the change in owner’s name for the IBM separately from the annual testing recordkeeping requirements. Corporation, Essex Junction, Vermont reports. As a result, the delisting is Authority: Section 3001(f) RCRA, 42 facility. The exclusion or ‘‘delisting’’ being modified to include paragraph U.S.C. 6921(f) was granted to IBM on September 13, 3.(B)(iv) to reflect this change. We are Dated: June 29, 2015. also clarifying in paragraph 3.(B)(iii) 2012 (see 77 FR 56558). The EPA has H. Curtis Spalding, been notified that the transfer of that the annual testing results shall be submitted to EPA within thirty days Regional Administrator, EPA Region 1. ownership of the Essex Junction facility For the reasons set out in the to GLOBALFOUNDRIES U.S. 2 LLC will after both annual samples have been taken. preamble, 40 CFR part 261 is amended occur on July 1, 2015. as follows: GLOBALFOUNDRIES has certified that The changes to appendix IX of part it plans to comply with all the terms 261 are effective July 20, 2015. The PART 261—IDENTIFICATION AND and conditions set forth in the delisting Hazardous and Solid Waste LISTING OF HAZARDOUS WASTE and will not change the characteristics Amendments of 1984 amended section of the wastes subject to the exclusion at 3010 of the Resource Conservation and ■ 1. The authority citation for part 261 the Essex Junction facility. This notice Recovery Act (RCRA) to allow rules to continues to read as follows: documents the change by updating become effective in less than six months Authority: 42 U.S.C. 6905, 6912(a), 6921, appendix IX to incorporate a change in when the regulated community does not 6922, and 6938. need the six-month period to come into name. ■ 2. Table 1 of Appendix IX to part 261 In accordance with the delisting compliance. As described above, the is amended by removing the ‘‘IBM approval, IBM has completed the facility has certified that it is prepared Corporation’’ entry and adding a new quarterly verification testing to comply with the requirements of the entry ‘‘GLOBALFOUNDRIES U.S. 2 requirements set forth in paragraph exclusion. Therefore, a six-month delay LLC’’ in alphabetical order by facility to 3.(A) and has submitted the first set of in the effective date is not necessary in read as follows: annual testing results in accordance this case. This provides the basis for with paragraph 3.(B). As part of this making this amendment effective Appendix IX to Part 261—Waste notice, EPA is clarifying the immediately upon publication under Excluded Under §§ 260.20 and 260.22

TABLE 1—WASTES EXCLUDED FROM NON-SPECIFIC SOURCES

Facility Address Waste description

******* GLOBALFOUNDRIES U.S. 2 LLC Essex Junction, VT Wastewater Treatment Sludge (Hazardous Waste No. F006) generated at a max- (formerly, ‘‘IBM Corporation’’). imum annual rate of 3,150 cubic yards per calendar year and disposed of in a Subtitle D Landfill which is licensed, permitted, or otherwise authorized by a state to accept the delisted wastewater treatment sludge. GLOBALFOUNDRIES U.S. 2 LLC must implement a testing program that meets the following conditions for the exclusion to be valid: 1. Delisting Levels: (A) All leachable concentrations for the following constituents must not exceed the following levels (mg/L for TCLP): Ar- senic—5.0; Barium—100.0; Cadmium—1.0; Chromium—5.0; Lead—5.0; Mercury 0.2; and, Nickel—32.4.

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TABLE 1—WASTES EXCLUDED FROM NON-SPECIFIC SOURCES—Continued

Facility Address Waste description

2. Waste Handling and Holding: (A) GLOBALFOUNDRIES U.S. 2 LLC must manage as hazardous all WWTP sludge generated until it has completed initial verification testing described in paragraph (3)(A) and valid analyses show that paragraph (1) is satisfied and written approval is received by EPA. (B) Levels of constituents measured in the samples of the WWTP sludge that do not exceed the levels set forth in paragraph (1) for two consecutive quarterly sampling events are non-haz- ardous. After approval is received from EPA, GLOBALFOUNDRIES U.S. 2 LLC can manage and dispose of the non-hazardous WWTP sludge according to all ap- plicable solid waste regulations. (C) Not withstanding having received the initial approval from EPA, if constituent levels in a later sample exceed any of the Delisting Levels set in paragraph (1), from that point forward, GLOBALFOUNDRIES U.S. 2 LLC must treat all the waste covered by this exclu- sion as hazardous until it is demonstrated that the waste again meets the levels in paragraph (1). GLOBALFOUNDRIES U.S. 2 LLC must manage and dispose of the waste generated under Subtitle C of RCRA from the time that it becomes aware of any exceedance. 3. Verification Testing Requirements: GLOBALFOUNDRIES U.S. 2 LLC must per- form sample collection and analyses in accordance with the approved Quality As- surance Project Plan dated January 27, 2011. All samples shall be representative composite samples according to appropriate methods. As applicable to the meth- od-defined parameters of concern, analyses requiring the use of SW–846 meth- ods incorporated by reference in 40 CFR 260.11 must be used without substi- tution. As applicable, the SW–846 methods might include Methods 0010, 0011, 0020, 0023A, 0030, 0031, 0040, 0050, 0051, 0060, 0061, 1010A, 1020B,1110A, 1310B, 1311, 1312, 1320, 1330A, 9010C, 9012B, 9040C, 9045D, 9060A, 9070A (uses EPA Method 1664, Rev. A), 9071B, and 9095B. Methods must meet Per- formance Based Measurement System Criteria in which the Data Quality Objec- tives are to demonstrate that samples of the GLOBALFOUNDRIES U.S. 2 LLC sludge are representative for all constituents listed in paragraph (1). To verify that the waste does not exceed the specified delisting concentrations, for one year after the final exclusion is granted GLOBALFOUNDRIES U.S. 2 LLC must perform quarterly analytical testing by sampling and analyzing the WWTP sludge as fol- lows: (A) Quarterly Testing: (i) Collect two representative composite samples of the WWTP sludge at quarterly intervals after EPA grants the final exclusion. The first composite samples must be taken within 30 days after EPA grants the final approval. The second set of samples must be taken at least 30 days after the first set. (ii) Analyze the samples for all constituents listed in paragraph (1). Any waste regarding which a composite sample is taken that exceeds the delisting levels list- ed in paragraph (1) for the sludge must be disposed as hazardous waste in ac- cordance with the applicable hazardous waste requirements from the time that GLOBALFOUNDRIES U.S. 2 LLC becomes aware of any exceedance. (iii) Within thirty (30) days after taking each quarterly sample, GLOBALFOUNDRIES U.S. 2 LLC will report its analytical test data to EPA. If levels of constituents measured in the samples of the sludge do not exceed the levels set forth in paragraph (1) of this exclusion for two consecutive quarters, and EPA concurs with those findings, GLOBALFOUNDRIES U.S. 2 LLC can manage and dispose the non-hazardous sludge according to all applicable solid waste regulations. (B) Annual Testing: (i) If GLOBALFOUNDRIES U.S. 2 LLC completes the quarterly testing specified in paragraph (3) above and no sample contains a constituent at a level which ex- ceeds the limits set forth in paragraph (1), GLOBALFOUNDRIES U.S. 2 LLC may begin annual testing as follows: GLOBALFOUNDRIES U.S. 2 LLC must test two representative composite samples of the wastewater treatment sludge (following the same protocols as specified for quarterly sampling, above) for all constituents listed in paragraph (1) at least once per calendar year. (ii) The samples for the annual testing taken for the second and subsequent annual testing events shall be taken within the same calendar month as the first annual sample taken. (iii) GLOBALFOUNDRIES U.S. 2 LLC shall submit an annual testing report to EPA with all of its annual test results, within thirty (30) days after taking the two annual samples. (iv) GLOBALFOUNDRIES U.S. 2 LLC shall submit to EPA in January of each year the total amount of waste in cubic yards disposed during the previous calendar year.

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TABLE 1—WASTES EXCLUDED FROM NON-SPECIFIC SOURCES—Continued

Facility Address Waste description

4. Changes in Operating Conditions: If GLOBALFOUNDRIES U.S. 2 LLC signifi- cantly changes the manufacturing or treatment process described in the petition, or the chemicals used in the manufacturing or treatment process, it must notify the EPA in writing and may no longer handle the wastes generated from the new process as non-hazardous unless and until the wastes are shown to meet the delisting levels set in paragraph (1), GLOBALFOUNDRIES U.S. 2 LLC dem- onstrates that no new hazardous constituents listed in appendix VIII of part 261 have been introduced, and GLOBALFOUNDRIES U.S. 2 LLC has received written approval from EPA to manage the wastes from the new process under this exclu- sion. While the EPA may provide written approval of certain changes, if there are changes that the EPA determines are highly significant, the EPA may instead re- quire GLOBALFOUNDRIES U.S. 2 LLC to file a new delisting petition. 5. Data Submittals and Recordkeeping: GLOBALFOUNDRIES U.S. 2 LLC must sub- mit the information described below. If GLOBALFOUNDRIES U.S. 2 LLC fails to submit the required data within the specified time or maintain the required records on-site for the specified time, EPA, at its discretion, will consider this sufficient basis to reopen the exclusion as described in paragraph (6). GLOBALFOUNDRIES U.S. 2 LLC must: (A) Submit the data obtained through paragraph (3) to the Chief, RCRA Waste Management & UST Section, U.S. EPA Region 1, (OSRR07–1), 5 Post Office Square, Suite 100, Boston, MA 02109– 3912, within the time specified. All supporting data can be submitted on CD–ROM or some comparable electronic media; (B) Compile, summarize, and maintain on site for a minimum of five years and make available for inspection records of op- erating conditions, including monthly and annual volumes of WWTP sludge gen- erated, analytical data, including quality control information and, copies of the noti- fication(s) required in paragraph (7); (C) Submit with all data a signed copy of the certification statement in 40 CFR 260.22(i)(12). 6. Reopener Language—(A) If, anytime, after disposal of the delisted waste, GLOBALFOUNDRIES U.S. 2 LLC possesses or is otherwise made aware of any environmental data (including but not limited to leachate data or groundwater monitoring data) or any other relevant data to the delisted waste indicating that any constituent is at a concentration in the leachate higher than the specified delisting concentration, then GLOBALFOUNDRIES U.S. 2 LLC must report such data, in writing, to the Regional Administrator and to the Vermont Agency of Nat- ural Resources Secretary within 10 days of first possessing or being made aware of that data. (B) Based on the information described in paragraph (A) and any other information received from any source, the Regional Administrator will make a preliminary determination as to whether the reported information requires Agen- cy action to protect human health or the environment. Further action may include suspending, or revoking the exclusion, or other appropriate response necessary to protect human health and the environment. (C) If the Regional Administrator de- termines that the reported information does require Agency action, the Regional Administrator will notify GLOBALFOUNDRIES U.S. 2 LLC in writing of the actions the Regional Administrator believes are necessary to protect human health and the environment. The notice shall include a statement of the proposed action and a statement providing GLOBALFOUNDRIES U.S. 2 LLC with an opportunity to present information as to why the proposed Agency action is not necessary or to suggest an alternative action. GLOBALFOUNDRIES U.S. 2 LLC shall have 30 days from the date of the Regional Administrator’s notice to present the informa- tion. (D) If after 30 days GLOBALFOUNDRIES U.S. 2 LLC presents no further in- formation or after a review of any submitted information, the Regional Adminis- trator will issue a final written determination describing the Agency actions that are necessary to protect human health or the environment. Any required action de- scribed in the Regional Administrator’s determination shall become effective im- mediately, unless the Regional Administrator provides otherwise. 7. Notification Requirements: GLOBALFOUNDRIES U.S. 2 LLC must do the fol- lowing before transporting the delisted waste: (A) Provide a one-time written notifi- cation to any state Regulatory Agency to which or through which it will transport the delisted waste described above for disposal, 60 days before beginning such activities; (B) Update the one-time written notification if it ships the delisted waste to a different disposal facility. Failure to provide this notification will result in a vio- lation of the delisting petition and a possible revocation of the decision.

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[FR Doc. 2015–17672 Filed 7–17–15; 8:45 am] BILLING CODE 6560–50–P

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ENVIRONMENTAL PROTECTION • Hand Delivery: To make special import) and processing of chemical AGENCY arrangements for hand delivery or substances. It is the expressed intent of delivery of boxed information, please Congress that EPA carry out TSCA in a 40 CFR Parts 720, 721, 723, and 725 follow the instructions at http:// reasonable and prudent manner, and in [EPA–HQ–OPPT–2013–0385; FRL–9927–79] www.epa.gov/dockets/contacts.html. consideration of the impacts that any Additional instructions on commenting action taken under TSCA may have on RIN 2070–AJ98 or visiting the docket, along with more the environment, the economy, and information about dockets generally, is society (TSCA section 2). The TSCA Section 5 Premanufacture and available at http://www.epa.gov/ underlying requirements promulgated Significant New Use Notification dockets. under this broad authority and amended Electronic Reporting FOR FURTHER INFORMATION CONTACT: For by this final rule require manufacturers AGENCY: Environmental Protection technical information contact: Greg (including importers) and processors of Agency (EPA). Schweer, Chemical Control Division, chemical substances and mixtures to: • Notify EPA at least 90 days before ACTION: Direct Final Rule. Office of Pollution Prevention and Toxics, Environmental Protection manufacturing a new chemical SUMMARY: EPA is taking direct final Agency, 1200 Pennsylvania Ave. NW., substance for commercial purposes action to amend the Toxic Substances Washington, DC 20460–0001; MC (TSCA section 5(a)(1)(A)). • Notify EPA at least 90 days before Control Act (TSCA) section 5 electronic 7405M; telephone number: (202) 564– manufacturing or processing the reporting regulations. These electronic 8469; email address: Schweer.greg@ chemical substance for any use of a reporting regulations establish standards epa.gov. and requirements for use of EPA’s For general information contact: The chemical substance that EPA has Central Data Exchange (CDX) to TSCA-Hotline, ABVI-Goodwill, 422 determined to be a ‘‘significant new electronically submit premanufacture South Clinton Ave., Rochester, NY use’’ (TSCA section 5(a)(1)(B)). Section 5(h)(4) of TSCA authorizes notices (PMNs), other TSCA section 5 14620; telephone number: (202) 554– EPA, upon application and by rule, to notices, and support documents to the 1404; email address: TSCA-Hotline@ exempt the manufacturer of any new Agency. This rule provides the user epa.gov. chemical substance from part or all of community with new methods for SUPPLEMENTARY INFORMATION: accessing the e-PMN software, new the provisions of TSCA section 5. In addition, the Paperwork Reduction procedures for completing the I. Executive Summary Act (PRA) requires Federal agencies to electronic-PMN (e-PMN) form, changes A. Does this action apply to me? manage information resources to reduce to the CDX registration process, adds the information collection burdens on the requirement to submit ‘‘bona fide You may be affected by this action if public; increase program efficiency and intents to manufacture’’ electronically, you manufacture (which includes effectiveness; and improve the integrity, and changes to the procedure for import) or process chemicals for quality, and utility of information to all notifying EPA of any new commercial purposes that are subject to users within and outside an agency, manufacturing site of a chemical TSCA. The following list of North including capabilities for ensuring substance for which an exemption was American Industrial Classification dissemination of public information, granted by EPA. This action is intended System (NAICS) codes is not intended public access to Federal Government to further streamline and reduce the to be exhaustive, but rather provides a information, and protections for privacy administrative costs and burdens of guide for readers regarding industries within which entities are likely to be and security (44 U.S.C. 3501 et seq.). TSCA section 5 notifications for both Finally, the Government Paperwork industry and EPA. affected by this action. Potentially affected entities may include, but are Elimination Act (GPEA) (Pub. L. 105– DATES: This direct final rule is effective not limited to: 277 (44 U.S.C. 3504)) instructs Federal January 19, 2016 without further notice, • Manufacturers and processors of agencies to use and accept from the unless EPA receives adverse comment chemical substances or mixtures public, when practicable, electronic on or before August 19, 2015. If EPA (NAICS codes 325 and 32411). forms, electronic filings, and electronic receives adverse comments on this Full descriptions of these NAICS signatures in the conduct of official action, EPA will withdraw the rule codes and related establishments are business with the public. before its effective date. EPA will then maintained by the U.S. Census Bureau C. What action is the agency taking? issue a proposed rule, providing a 30- online at https://www.census.gov/eos/ day period for public comment. www/naics/index.html. Other types of This direct final rule amends the ADDRESSES: Submit your comments, entities not listed in this unit could also TSCA Section 5 Premanufacture and identified by docket identification (ID) be affected. To determine whether you Significant New Use Notification number EPA–HQ–OPPT–2013–0385, by or your business may be affected by this regulations at 40 CFR parts 720, 721, one of the following methods: action, you should carefully examine 723 and 725, by mandating the use of • Federal eRulemaking Portal: http:// the applicability provisions in 40 CFR an updated version of the e-PMN www.regulations.gov. Follow the online parts 700, 720, 721, 723, and 725 for reporting software. In the Federal instructions for submitting comments. TSCA section 5-related obligations. If Register of January 2010 (75 FR 773) Do not submit electronically any you have any questions regarding the (FRL–8794–5), EPA issued a final rule information you consider to be applicability of this action to a requiring the use of the e-PMN reporting Confidential Business Information (CBI) particular entity, consult the technical software for the submission of PMNs or other information whose disclosure is person listed under FOR FURTHER and other TSCA section 5 notices and restricted by statute. INFORMATION CONTACT. support documents to the Agency using • Mail: Document Control Office the Internet through CDX. This new (7407M), Office of Pollution Prevention B. What is the agency’s authority for version of the e-PMN software will and Toxics (OPPT), Environmental taking this action? operate as a ‘‘cloud’’ software system Protection Agency, 1200 Pennsylvania TSCA gives EPA broad authority to (‘‘Thin Client Version’’) rather than as a Ave. NW., Washington, DC 20460–0001. regulate the manufacture (including downloadable software system (‘‘Thick

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Client Version’’). In addition, the direct e-PMN software that is easier to access, B. What is CISS? final rule extends electronic reporting features enhanced submission security, CISS is a web-based reporting tool requirements to notices of ‘‘bona fide and eliminates size limitations on the developed by EPA for use in submitting intent to manufacture’’ (bona fides); submitted files. The action also corrects data, reports, and other information corrects certain regulatory cross- certain outdated regulatory cross- under certain sections of TSCA references in 40 CFR parts 720 and 721; references, and standardizes electronically to the Agency. CISS standardizes the use of ‘‘manufacture’’ terminology across certain regulatory provides user-friendly navigation, works and similar language in 40 CFR parts provisions. If EPA receives adverse with CDX to secure online 720, 721, and 725; and specifies comment, the agency will publish a communication, creates a completed electronic reporting procedures for the timely withdrawal in the Federal Portable Document Format (PDF) for notification of new manufacturing sites Register informing the public that the review prior to submission, and enables pursuant to 40 CFR 723.50(j)(6)(ii). rule will not take effect. If EPA does not data, reports, and other information to D. Why is the agency taking this action? receive any timely adverse comment, be submitted easily as PDF attachments, this amendment will become effective or by other electronic standards, such as The Agency is taking this action to as indicated under DATES without any XML. further facilitate electronic reporting under TSCA and to streamline and further action by EPA. C. What is the thin client version of the reduce the administrative costs and B. What should I consider as I prepare e-PMN software? burdens of TSCA section 5 notifications my comments for EPA? The thin client version of the e-PMN for both industry and EPA. This change software is a submission module within will eliminate certain firewall and file 1. Submitting CBI. Do not submit this CISS. Following promulgation of the e- submission size limitations that exist information to EPA through http:// PMN final rule in 2010, EPA launched with the current version of the software. www.regulations.gov or email. Clearly submission modules in CISS for TSCA This change will also enable submitters mark the part or all of the information Chemical Data Reporting, TSCA section to work directly online within the Thin that you claim to be CBI. For CBI 4 test data submissions, TSCA section Client Version which provides a more information in a disk or CD–ROM that 8(a) preliminary assessment information efficient way of accessing the e-PMN you mail to EPA, mark the outside of the rules, TSCA section 8(d) health and software and transmitting data to EPA. disk or CD–ROM as CBI and then safety data reporting rules, and In addition, the extension of the identify electronically within the disk or mandatory notifications of substantial electronic reporting requirements CD–ROM the specific information that risk under TSCA section 8(e) along with ensures that submitters are able to use is claimed as CBI. In addition to one related, voluntary ‘‘For Your a single method of submission for complete version of the comment that Information’’ submissions. EPA has related TSCA section 5 notifications. includes information claimed as CBI, a enhanced the e-PMN software in the E. What are the impacts of this action? copy of the comment that does not thin client version to incorporate several contain the information claimed as CBI functions already available to submitters EPA believes that both the transition must be submitted for inclusion in the in the other CISS submission modules, from the Thick Client Version to the public docket. Information so marked including: Thin Client Version of the e-PMN will not be disclosed except in 1. Enhanced CDX Registration and software, as well as the changes to the accordance with procedures set forth in Submission Process. When submitters procedures for notifying EPA of any 40 CFR part 2. complete new CDX registration new manufacturing site of a chemical activities, they are prompted to choose 2. Tips for preparing your comments. substance for which an exemption was 5 out of 20 offered questions and When preparing and submitting any granted by EPA under 40 CFR 723.50, provide answers to each of those 5 comments, see the commenting tips at will streamline and reduce slightly the questions. In order to electronically sign administrative costs and burdens http://www.epa.gov/dockets/ and submit data to the EPA or to associated with TSCA section 5 comments.html. download the Copy of Record in CDX, notifications for both industry and EPA; III. Overview of the CDX, CISS, and the a user must correctly answer 1 the only burden expected is the time it randomly selected question of the 5 takes a submitter to familiarize Thin Client Version of the e-PMN Software questions chosen by that user (i.e., a themselves with the rule. EPA believes ‘‘20–5–1’’ security question) before the that submitters of bona fide intents to A. What is CDX? transaction can be completed. When the manufacture will experience burden 20–5–1 security question is answered CDX is EPA’s electronic system for and cost savings because the time correctly, the thin client version of the required to enter, review, and edit their environmental data exchange to the software then encrypts the information notices using the e-PMN software and Agency. CDX also provides the and transaction is completed. transmit their submissions to EPA capability for submitters to access their 2. Optional online Electronic electronically will be less than that for data through the use of web services. Signature Agreement (ESA) and identity the existing paper-based process. See CDX enables EPA to work with validation. The thin client version of the also the discussion in Unit IV. stakeholders, including governments, e-PMN software enables electronic II. Direct Final Rule Procedures regulated industries, and the public, to submitters who are newly applying for enable streamlined, electronic the Authorized Official (AO) role in A. Why is EPA using a direct final rule? submission of data via the Internet. For CDX to validate their personal identities EPA is publishing this rule without a more information about CDX, go to electronically via LexisNexis. Those prior proposed rule because the Agency http://epa.gov/cdx. TSCA section 5 submitters applying for the AO role who views this as a noncontroversial action submissions will be prepared and choose to not use LexisNexis, or for and anticipates no adverse comment. As submitted through Chemical whom LexisNexis could not validate addressed in Unit I.A., this action Information Submission System (CISS) their identities, will need to follow the requires the use of a new version of the in CDX. current, paper-based e-PMN identity

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validation process. In CDX, these registrants of the submitting company (Ref. 1). This user guide is available submitters will instead select the ‘‘Sign and their designated support persons. through EPA’s Web page at http:// Paper Form’’ option. CDX will then Also, once a user completes the relevant www.epa.gov/oppt/chemtest/ereporting. instruct the user to print, sign, and mail data fields and attaches appropriate PDF EPA has also prepared a separate user the ESA (ESA processing by EPA may files or other allowable file types, the guide for the e-PMN software module in take up to 10 business days from the web-based tool validates the submission CISS (i.e., the Thin Client Version) (Ref. date of receipt). Since support persons by performing a basic error check and 2) which is available through EPA’s are not able to sign and complete makes sure all the required fields and Web page at http://epa.gov/oppt/ submissions or download the Copy of attachments are provided and complete. newchems/epmn/epmn-index.htm. Record for a submission, they will be Finally, the Thin Client Version assures able to register with CDX without that submitters will always use the most IV. Description of Changes to Required authentication of identity. up-to-date version of the e-PMN Reporting Procedures 3. AO Role Expansion. The role of the software when initiating, updating, and/ A. What are the new requirements for AO has been expanded. Not only does or completing their submissions in ‘‘Bona Fide Intents to Manufacture’’? the AO of the submitting company CISS. certify initial notices and submit all In addition, the thin client version This direct final rule extends the types of section 5 documents to EPA via improves EPA data management by electronic reporting requirement to CDX, the role has been broadened to altering the process for submitting submit PMNs, other TSCA section 5 allow non-certifying AOs (e.g., technical amendments to a valid notice. notices, and support documents to the contacts, consultants etc.) to conduct all Currently, submitters would Agency electronically to include the TSCA section 5 business on behalf of electronically submit only the amended submissions of bona fides. A person the company except for certifying and sections of the form. Under the new who intends to manufacture a chemical submitting initial notices including joint procedure, companies will revise the substance not listed by specific submissions and letters of support. The necessary information in the initial chemical name in the public portion of role for the registered support person notice or a previously modified version the Inventory of Chemical Substances has also changed. Support persons will of the notice and an entire updated may ask EPA, through submission of a have the ability only to edit information notice will then be resubmitted to EPA. bona fide intent to manufacture, in forms to which they have been This provides EPA with a complete, whether the substance is included in the granted access by the AO. updated version of the entire confidential portion of the Inventory 4. Updated user roles/designations. submission in one document. and, thus, be able to determine whether For joint submissions and/or letters of submission of a Premanufacture Notice support, there are new designations/ E. Will CBI be protected when using the or Significant New use Notice in roles assigned in registration referred to thin client version of the e-PMN accordance with TSCA section 5(a)(1) is as ‘‘secondary’’ (for both AOs and software? required. Bona fides were not included support persons). The ‘‘primary’’ role Yes. The application has been within the scope of the January 2010 designation is for persons who will designed to support TSCA CBI needs by final rule due to the variability and create and submit the main PMN and providing a secure environment that frequency of these types of submissions. supporting documents. The meets Federal standards. The However, in that rule, EPA stated that ‘‘secondary’’ role designation is for application uses Transportation Layer this and other types of submissions persons who will create and submit Security with 256-bit digital encryption, could be considered for electronic joint submissions and letters of support. and the data is encrypted at rest using reporting in the future. Bona fides are a key that only a user knows. All data currently submitted in paper form only D. What are the benefits of the thin remains encrypted until it is behind according to the requirements of 40 CFR client version of the e-PMN software? several EPA firewalls and within the 720.25, 721.11 and 725.15 which do not EPA developed the Thin Client EPA CBI LAN, and all encryption prescribe a format, only required Version of the e-PMN software to algorithms are compliant with Federal content. This direct final rule requires provide a more efficient way of Information Processing Standards. In that submitter to submit this accessing the e-PMN software and addition, users must have valid CDX information electronically using the completing the e-PMN form. The Thin credentials (user name and password Thin Client Version of the e-PMN Client Version of the software was also combination) to access the application, software. designed to enable more efficient data and they choose and provide answers to transmittal, including increasing the B. What are the new requirements for 5 of the 20 offered questions in CDX. In notification of new manufacturing sites? size of files that can be submitted to order to access the CDX account and EPA. By moving from the Thick Client submit data to the EPA or to download As required under 40 CFR Version of the e-PMN software to the the Copy of Record, a user must 723.50(j)(6)(ii), a manufacturer Thin Client Version, the Agency has correctly answer one of the 5 chosen (including importer) must notify EPA of eliminated the roadblocks associated questions associated with the CDX any new manufacturing site of a with firewalls that were encountered by account. chemical substance for which an some users of the Thick Client Version exemption was granted by EPA under by allowing submitters to work directly F. How do I submit TSCA section 5 40 CFR 723.50. Under the existing online within the Thin Client Version notifications and support documents regulation, companies may use, but are or, if they choose, to work offline using using CDX and the ‘‘Thin Client not required to use, the Notice of an XML schema which allows them to Version’’ of the e-PMN software? Commencement (NOC) to report later upload their information to the EPA has prepared a comprehensive manufacturing site changes to EPA. Thin Client Version. When preparing user guide for CISS users that addresses Under the existing regulation, however, and completing submissions in the thin CDX registration and electronic if the NOC form is used for this purpose, client version, submitters will find that signatures, general submission the manufacturer must add a statement sharing files within the software makes preparation and completion, and to the NOC form that the notification is the information readily accessible to submission status tracking notifications an amendment to the original

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exemption. The electronic version of the unpredictable or unanticipated incorrectly references 40 CFR NOC in the e-PMN software has been technical difficulties in electronic filing 720.36(g)(5) concerning changes in designed to solely deal with NOCs and or with the conversion to the ‘‘Thin chemical composition which have no will not accommodate notifications of Client Version.’’ However, EPA expects commercial purpose separate from that manufacturing site changes. Therefore, that the transition costs and any of the article. This rulemaking corrects this direct final rule requires that such transition difficulties will be mitigated the cross-reference to 40 CFR notifications of changes in by: 720.30(h)(5). manufacturing sites be submitted 1. EPA’s planned outreach and 2. Removal of the cross-reference to electronically to EPA via CDX as a training sessions prior to the effective 40 CFR 710.7(e)(2)(v) in 40 CFR ‘‘support document’’ to the original date of this direct final rule. EPA notification. believes that the six-month phase-out 720.25(b)(4) and 40 CFR 721.11(d). The period for the Thick Client Version CFR at § 720.25(b)(4) and § 721.11(d) C. How has the required method of between the date of publication and the currently cross-references both 40 CFR submission changed? effective date of this direct final rule 710.7(e)(2)(v) and 40 CFR EPA’s electronic reporting program provides submitters with ample time to 720.85(b)(3)(iii). These cross-references has evolved significantly following the register to use and become proficient should only be to 40 CFR promulgation of the e-PMN final rule in with the Thin Client Version of the e- 720.85(b)(3)(iii); 40 CFR 710.7(e)(2)(v) 2010. Following promulgation of that PMN software. EPA will accept no longer exists. rule, EPA announced web-based submissions using the Thin Client 3. Use of ‘‘manufacture or import’’ electronic reporting workflows for Version of the e-PMN software and similar language in 40 CFR TSCA Chemical Data Reporting, TSCA beginning on September 3, 2015. After 720.25(b), 40 CFR 721.11 and 40 CFR section 4 test data submissions, TSCA January 19, 2016, use of the Thin Client 725.15. The definition of ‘‘manufacture’’ section 8(a) preliminary assessment Version of the e-PMN software becomes in section 3(7) of TSCA includes both information rules, TSCA section 8(d) mandatory. manufacture and import. However, in health and safety data reporting rules, 2. EPA’s offering of an XML schema many places in TSCA section 5 and mandatory notifications of to those submitters who choose to work regulations in parts 720, 721, 725 and substantial risk under TSCA section 8(e) on their submissions offline rather than elsewhere the terms ‘‘manufacture or along with related, voluntary ‘‘For Your online, which allows them to later Information’’ submissions. import’’ or ‘‘manufacture, import or upload their information to the Thin process’’ are used. EPA is revising Under the current e-PMN rule Client Version of the e-PMN software for requirements, TSCA section 5 ‘‘manufacture’’ and ‘‘manufacturer’’ in submission using CDX. The six-month some of the provisions affected by this submitters already must register in CDX phase-out period for the period between and complete an electronic signature rule to clarify that import is included in the date of publication and the effective manufacture under TSCA. This is not agreement before submitting any date of the final rule should provide intended to make any substantive information to EPA electronically via these users adequate time to implement change to the regulations. As EPA CDX using the e-PMN software. This the XML schema on their systems. direct final rule requires all persons 3. EPA’s technical support following amends other TSCA regulations with who will be working online on a the effective date of this final rule. similar language in the future, the submission to register with EPA’s CDX Agency intends to make corresponding and to use the e-PMN module within E. Will all types of TSCA section 5 changes. CISS to prepare data for submission. notices and communications be 4. Removal of the definition of submitted via e-PMN software? EPA expects that most TSCA section 5 ‘‘optical disc’’ in 40 CFR 720.3. The submitters are already registered in At this time, the Agency lacks January 2010 (75 FR773) final rule CDX. Those users do not need to re- electronic reporting capability for some phased out the electronic submission of register with CDX, nor will they need to TSCA section 5-related notices (e.g., TSCA section 5 notices to EPA via re-verify their identities. In order to use polymer exemption annual reports); optical disc as a valid method of the Thin Client Version of the e-PMN certain support documents (i.e., TSCA submission as of April 6, 2012. software required under this direct final section 5(e) consent orders or orders Therefore, the definition currently rule, users who have previously imposed pursuant to TSCA section presented at 40 CFR 720.3(kk) is registered with CDX under the TSCA 5(e)(2)(B)); and certain communications obsolete and will be removed. workflow to submit TSCA section 5 (e.g., pre-notice communications and 5. Use of CDX to submit written submissions, or other CDX workflows TSCA Inventory correspondence), due requests for suspension of the notice such as the Toxics Release Inventory to the variability and infrequent nature TRI–ME web reporting, will only need of these types of submissions. EPA may review period in 40 CFR 720.75. The to add the ‘‘Submission for Chemical consider offering electronic reporting of January 2010 final rule phased out Safety and Pesticide Program (CSPP)’’ these and other submissions in the paper submissions of TSCA section 5 CDX workflow to their user profiles. future. notices to EPA as of April 6, 2011, and the electronic submission of TSCA D. Will EPA offer any exceptions to the V. Corrections to 40 CFR Parts 720, 721, section 5 notices to EPA via optical disc transition to the thin client version? 723 and 725 as a valid method of submission as of No. The Agency has concluded that The direct final rule also corrects April 6, 2012. However, 40 CFR the overall benefits from everyone using certain regulatory cross-references in 40 720.75(b)(4) continues to provide that the more efficient Thin Client Version of CFR parts 720 and 721 and standardizes written requests for suspension of the the e-PMN software and submission the use of ‘‘manufacture’’ and similar notice review period may be submitted through CDX exceed those associated language in 40 CFR parts 720, 721, and to EPA on paper, on optical disc, or in with maintaining a multi-optioned 725. CDX. This final rule corrects 40 CFR reporting approach (Ref. 3). The Agency 1. Minor change to definition of 720.75 to specify that written recognizes that there is the potential for ‘‘article’’ in 40 CFR 720.3. The current suspension requests must be submitted costs and burden associated with definition of ‘‘article’’ at 40 CFR 720.3(c) to EPA via CDX.

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VI. Estimated Economic Impact because the time required to enter, FR 72818) (FRL–9394–6) requires that The Agency’s estimated economic review, and edit their notices using the any new NOCs for PMNs filed in paper impact of this direct final rule is e-PMN software and transmit their prior to April 2012 be submitted presented in a document entitled submissions to EPA electronically will electronically using the e-PMN software ‘‘Economic Analysis of the TSCA be less than that for the existing paper- (Ref. 7). Firms expected to submit bona Section 5 Premanufacture and based process. In EPA’s economic fides, suspension requests, and changes Significant New Use Notification analysis (Ref. 3), estimated burden and in manufacturing sites are believed by Electronic Reporting; Revisions to cost savings are presented in EPA to primarily be the same firms that Notification Regulations’’ (Economic comparison to the burden and costs that are already complying with the existing Analysis) (Ref. 3), a copy of which is will be incurred if industry were to regulations. EPA therefore does not available in the docket and is briefly continue submitting notices via paper, believe that many, if any, firms would summarized in this unit. In the as was outlined in the previous incur such costs only for the electronic Information Collection Request (ICR) economic analysis supporting the submission of bona fides or notifications (Ref. 5). OMB has already approved the January 6, 2010 (75 FR 773) e-PMN final of manufacturing site changes for a underlying information collection rule, EPA estimated that the electronic previously submitted PMN. requirements described in this direct submission of TSCA section 5 notices The total annual burden to society final rule under OMB control numbers and support documents would reduce (industry plus EPA) from the e-PMN 2070–0012 and 2070–0038 (EPA the burden and cost associated with the software is expected to decrease by 57 Information Collection Request (ICR) paper-based reporting process of TSCA hours in the first year and 529 hours in No. 0574.15, Premanufacture Review section 5 notices and support subsequent years. The total cost to Reporting and Exemption Requirements documents (Ref. 4). This direct final rule society is expected to increase by $1,000 for New Chemical Substances and in year one and decrease by $20,000 in amends the existing premanufacture Significant New Use Reporting notification regulation to mandate the future years. These cost savings may be Requirements for Chemical Substances diminished by any transactions costs use of the Thin Client Version of the e- (Ref. 5) and EPA ICR No. 1188.11, TSCA PMN reporting software, require use of that firms compelled to switch to the Section 5(a)(2) Significant New Use new software system might face for electronic reporting of TSCA section 5 Rules for Existing Chemicals (Ref. 6)), bona fides, and amends the procedures submission of bona fides. EPA believes respectively. EPA has submitted that both the transition from the Thick for notifying EPA of any new requests for additional approval to OMB manufacturing site of a chemical Client Version to the Thin Client under PRA (Refs. 8 and 9) because the Version, as well as the changes to the substance for which an exemption was direct final rule alters the required form granted by EPA under 40 CFR 723.50. procedures for notifying EPA of any and format of the existing, approved new manufacturing site of a chemical These amendments are expected to collections of information. further streamline and reduce the substance for which an exemption was Once the rule is fully implemented, granted by EPA under 40 CFR 723.50, administrative costs and burdens EPA estimates a net burden savings to associated with TSCA section 5 will have a negligible impact on industry of 180 hours and a net cost of industry or Agency burden or costs, notifications for both industry and EPA. approximately $4,000 in the first year. The Thin Client Version of the e-PMN and, therefore, the cost savings In subsequent years, EPA estimates an associated with these changes are only software will reside as a module within annual net burden savings to industry of CISS in CDX. The Thin Client Version described qualitatively in the Economic 489 hours and annual net cost savings Analysis (Ref. 3). will eliminate certain firewall and file of approximately $17,000. The Agency submission size limitations, as well as is projected to experience an annual net VII. References reduce the potential for invalid burden savings of 40 hours and annual The public docket for this final rule submissions through built-in validation net cost savings of $3,000 for these same has been established. The following is a procedures. Use of the Thin Client submissions once the rule is fully listing of the documents referenced in Version also assures that should implemented. this preamble that have been placed in revisions be made by EPA, submitters Requiring use of the e-PMN software the public docket for this final rule will always use the most up-to-date for submission of bona fides (40 CFR under docket ID number EPA–HQ– version of the e-PMN software when 720.25, 40 CFR 721.11 and 40 CFR OPPT–2013–0385, which is available for initiating, updating, and/or completing 725.15), suspension requests (40 CFR inspection as specified under their submission in CISS. 720.75), and changes in manufacturing ADDRESSES. Making the software available to sites (40 CFR 723.50(j)(6)) eliminates the industry is expected to result in cost option of submitting paper. To the 1. EPA. Central Data Exchange CSPP CDX savings for both industry and EPA. extent that any firms would otherwise Registration Guide, December 12, 2011. However, this direct final rule, which 2. EPA. Section 5 Notices and Supports Users submit these notices on paper, these Guide. December 20, 2013 (available at: includes a new requirement for firms may incur some costs in order to http://www.epa.gov/oppt/newchems/ electronic submission of bona fide meet these mandatory submission epmn/epmn-index.htm). notices and changes to the procedures requirements. For example, some 3. EPA. Economic and Policy Analysis for notifying EPA of any new industry users may incur costs related to Branch, Office of Pollution Prevention manufacturing site of a chemical adjustments to internal processes or and Toxics (OPPT). Economic Analysis substance for which an exemption was recordkeeping systems, and investments of the TSCA Section 5 Premanufacture granted by EPA under 40 CFR 723.50, in compatible information technology. and Significant New Use Notification may result in some temporary increase At this time, EPA is unable to estimate Electronic Reporting; Revision to in cost to some industry users as they what these costs might be. However, Notification Regulations. November 17, 2014. make the transition to the new method firms have generally been required to 4. EPA. Economic and Policy Analysis of submission. As a result of making the file section 5 notifications electronically Branch, Office of Pollution Prevention software available, EPA believes that using the e-PMN software since April and Toxics (OPPT). Economic Analysis submitters of bona fide notices will 2012, and a final rule published in the of the Amendments to TSCA Section 5 experience burden and cost savings Federal Register of December 4, 2013(78 Premanufacture and Significant New Use

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Notification Requirements Final Rule. address the direct final rule identified at the beginning of this direct July 13, 2009. requirements related to EPA’s New final rule by August 19, 2015. You may 5. EPA Information Collection Request (ICR) Chemicals Program has been assigned also send your ICR-related comments to No. 0574.15, Premanufacture Review EPA ICR number 0574.16 (Ref. 8). This OMB’s Office of Information and Reporting and Exemption Requirements ICR addresses the required use of the Regulatory Affairs via email to oria_ for New Chemical Substances and Significant New Use Reporting Thin Client version of the e-PMN [email protected], Attention: Requirements for Chemical Substances. software system in CDX to complete Desk Officer for the EPA. Since OMB is 6. EPA ICR No. 1188.12, TSCA Section their TSCA section 5 submissions to required to make a decision concerning 5(a)(2) Significant New Use Rules for EPA’s New Chemicals Program instead the ICR between 30 and 60 days after Existing Chemicals. of a downloadable Thick Client version receipt, OMB must receive comments no 7. EPA. Electronic Reporting Under the Toxic of the e-PMN software system. In later than August 19, 2015. Substances Control Act; Final Rule. addition, this ICR addresses the Responses to the collection of Federal Register (78 FR 72818, mandatory electronic submission of information are mandatory, pursuant to December 4, 2013) (FRL–9394–6). bona fide notices and notifications of EPA’s authority under TSCA and PRA 8. EPA. Supporting Statement for a Request new manufacturing sites of chemical (as described in Unit I.C.). However, the for OMB Review under The Paperwork Reduction Act. Revision to substances for which an exemption was changes to the information collection Premanufacture Review Reporting and granted by EPA under 723.50. requirements in this direct final rule are Exemption Requirements for New As addressed in EPA ICR No. 0574.16, not enforceable until OMB approves Chemical Substances and Significant the total burden to industry is expected them. An agency may not conduct or New Use Reporting Requirements for to decrease 182 hours and the total cost sponsor, and a person is not required to Chemical Substances (Direct Final Rule; is expected to increase by $3,988 in the respond to, a collection of information RIN 2070–AJ98). EPA ICR No. 0574.16. first year of the rule, for a total burden unless it displays a currently valid OMB OMB Control Number 2070–0012. of 2,312 hours and $155,699. This control number. The OMB control 9. EPA. Supporting Statement for a Request includes an average per firm burden of numbers for EPA’s regulations in 40 for OMB Review under The Paperwork 0.82 hours for rule familiarization for CFR are listed in 40 CFR part 9. Reduction Act. Request for a Non- 336 TSCA section 5 submitters, a per- Substantive Change to an Existing C. Regulatory Flexibility Act Approved Information Collection, TSCA submission burden of 17.0 hours for Section 5(a)(2) Significant New Use rules electronic reporting of 116 bona fide I certify that this action will not have for Existing Chemicals. EPA ICR No. submissions, a per-registrant burden a significant economic impact on a 1188.12; OMB Control Number 2070– 0.43 hours for 93 new technical labor substantial number of small entities 0038. CDX registrations, and a-per registrant under the RFA, 5 U.S.C § 601 et seq. In burden of 1.07 hours for 23 new making this determination, the impact VIII. Statutory and Executive Order managerial CDX registrants. In all of concern is any significant adverse Reviews subsequent years of the rule the total economic impact on small entities, because the primary purpose of a final A. Executive Order 12866: Regulatory industry burden is expected to decrease regulatory flexibility analysis is to Planning and Review and Executive by 485 hours and $17,199. This includes identify and address regulatory Order 13563: Improving Regulation and a per submission burden of 17.0 hours alternatives that ‘‘minimize the Regulatory Review for electronic reporting of 116 bona fide submissions, a per-registrant burden significant economic impact on small This action is not a significant 0.43 hours for 46 new technical labor entities’’ 5 U.S.C. 604. Thus, an agency regulatory action as defined by CDX registrations, and a per-registrant may certify that a rule will not have a Executive Order 12866 (58 FR 51735, 1.07 hours for 12 new managerial CDX significant economic impact on a October 4, 1993). Accordingly, this registrants. substantial number of small entities if action was not submitted to the Office In addition, EPA has been assigned the rule has no net burden effect on the of Management and Budget (OMB) for EPA ICR number 1188.12 (Ref. 9) to the small entities subject to the rule. review under Executive Orders 12866 ICR document that addresses the direct As indicated previously, this final and 13563 (76 FR 3821, January 21, final rule requirements related EPA’s rule is expected to reduce the existing 2011). EPA has prepared an Economic Existing Chemicals Program (i.e., the regulatory burden. The factual basis for Analysis for this action (Ref. 3), which required use of the Thin Client version the Agency’s certification under the is available in the docket for this final of the e-PMN software system in CDX to RFA is presented in the small entity rule and is summarized in Unit VI. complete their TSCA section 5 impact analysis prepared as part of the submissions to EPA’s Existing Economic Analysis for this final rule B. Paperwork Reduction Act Chemicals Program instead of a (Ref. 3), and is briefly summarized in The information collection activities downloadable Thick Client version of Unit IV. in this direct final rule been submitted the e-PMN software system). The direct for approval to OMB under the PRA (44 final rule would only require firms who D. Unfunded Mandates Reform Act and U.S.C. 3501 et seq.) pursuant to the must already submit significant new use Executive Orders 13132 and 13175 procedures at 5 CFR 1320.5(c)(1) and notices for existing chemicals to use the This action will not have substantial 1320.10(a). The underlying new electronic reporting tool. EPA, direct effects on State, local, or tribal requirements are approved under OMB therefore, did not estimate any rule- governments, on the relationship control numbers 2070–0012 and 2070– related burden changes for this ICR. between the Federal Government and 0038. However, EPA has submitted You can find a copy of these ICR States or Indian Tribes, or on the requests for additional approval to OMB documents in the docket for this direct distribution of power and under PRA because the direct final rule final rule. Any comments on the responsibilities between the Federal alters the required form and format of Agency’s need for this information, the Government and States or Indian Tribes. the existing, approved collections of accuracy of the provided burden As a result, no action is required under information. estimates and any suggested methods Executive Order 13132, entitled The Information Collection Request for minimizing respondent burden must ‘‘Federalism’’ (64 FR 43255, August 10, (ICR) document that EPA prepared to be to the EPA using the docket 1999), or under Executive Order 13175,

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entitled ‘‘Consultation and Coordination ■ c. Redesignate paragraph (ll) as (kk). manufacture (including import) the with Indian Tribal Governments’’ (65 FR ■ d. Revise newly redesignated chemical substance for commercial 67249, November 9, 2000). Nor does it paragraph (kk). purposes. impose any enforceable duty or contain The revisions read as follows: (2) To establish a bona fide intent to manufacture (including import) a any unfunded mandate as described § 720.3 Definitions. under Title II of the Unfunded Mandates chemical substance, the person who Reform Act (UMRA) (2 U.S.C. 1531– * * * * * proposes to manufacture the substance 1538). (c) Article means a manufactured must submit the request to EPA via item: CDX. Prior to submission to EPA via E. Executive Orders 13045, 13211, and (1) Which is formed to a specific CDX, such bona fide intents to 12898 shape or design during manufacture; manufacture (including import) must be (2) Which has end use function(s) As indicated previously, this action is generated and completed using e-PMN dependent in whole or in part upon its not a ‘‘significant regulatory action’’ as software. See § 720.40(a)(2)(ii) for defined by Executive Order 12866. As a shape or design during end use; and (3) Which has either no change of information on how to access the e-PMN result, this action is not subject to chemical composition during its end software. A bona fide intent to Executive Order 13045, entitled use or only those changes of manufacture (including import) must ‘‘Protection of Children from composition which have no commercial contain: Environmental Health Risks and Safety purpose separate from that of the article (i) Except as provided in paragraphs Risks’’ (62 FR 19885, April 23, 1997) and that may occur as described in (b)(3)(i) and (ii) of this section, the and Executive Order 13211 entitled § 720.30(h)(5), except that fluids and specific chemical identity of the ‘‘Actions Concerning Regulations That particles are not considered articles substance that the person intends to Significantly Affect Energy Supply, regardless of shape or design. manufacture (including import), using Distribution, or Use’’ (66 FR 28355, May the currently correct CA Index name for 22, 2001). In addition, this action also * * * * * the substance and the other correct (kk) Support documents means does not require any special chemical identity information in material and information submitted to considerations under Executive Order accordance with § 720.45(a) (1), (2), and EPA in support of a TSCA section 5 12898 entitled ‘‘Federal Actions to (3). notice, including but not limited to, Address Environmental Justice in (ii) A signed statement that the person correspondence, amendments (if notices Minority Populations and Low-Income intends to manufacture (including for these amendments were submitted Populations’’ (59 FR 7629, February 16, import) that chemical substance for prior to January 19, 2016), and test data. 1994). commercial purposes. The term ‘‘support documents’’ does not F. National Technology Transfer and include orders under TSCA section 5(e) * * * * * Advancement Act (NTTAA) (either consent orders or orders imposed (4) EPA will review the information submitted by the proposed Since this action does not involve any pursuant to TSCA section 5(e)(2)(B)). manufacturer (including importer) technical standards, NTTAA section ■ 3. In § 720.25, revise paragraphs (b)(1), under this paragraph to determine 12(d), 15 U.S.C. 272 note, does not (b)(2) introductory text, (b)(2)(i) and (ii), whether it has a bona fide intent to apply to this action. and (b)(4), (5), (6), and (7) to read as follows: manufacture (including import) the IX. Congressional Review Act chemical substance. If necessary, EPA Pursuant to the CRA, 5 U.S.C. 801 et § 720.25 Determining whether a chemical will compare this information to the seq., EPA will submit a rule report to substance is on the Inventory. information requested for the each House of the Congress and to the * * * * * confidential chemical substance under Comptroller General of the United (b) * * * § 720.85(b)(3)(iii). States. This action is not a ‘‘major rule’’ (1) A chemical substance is listed in (5) If the proposed manufacturer as defined by 5 U.S.C. 804(2). the public portion of the Inventory by a (including importer) has shown a bona specific chemical name (either a fide intent to manufacture (including List of Subjects in 40 CFR Parts 720, Chemical Abstracts (CA) Index Name or import) the substance, and has provided 721, 723, and 725 a CA Preferred Name) and a Chemical sufficient unambiguous chemical Environmental protection, Chemicals, Abstracts Service (CAS) Registry identity information so EPA can make a Electronic reporting, Hazardous Number if its identity is not conclusive determination of the substances, Reporting and confidential. If its identity is chemical substance’s Inventory status, recordkeeping requirements. confidential, it is listed in the public EPA will search the confidential portion of the Inventory by a TSCA Inventory and inform the proposed Dated: July 10, 2015. Accession Number and a generic manufacturer (including importer) Louise P. Wise, chemical name that masks the specific whether the chemical substance is on Acting Assistant Administrator, Office of substance identity. The confidential the confidential Inventory. Chemical Safety and Pollution Prevention. substance is listed by its specific (6) If the chemical substance is found Therefore, 40 CFR chapter I is chemical name only in the confidential on the confidential Inventory, EPA will amended as follows: portion of the Inventory, which is not notify the person(s) who originally PART 720—[AMENDED] available to the public. A person who reported the chemical substance that intends to manufacture (including another person has demonstrated a bona ■ 1. The authority citation for part 720 import) a chemical substance not listed fide intent to manufacture (including continues to read as follows: by specific chemical name in the public import) the substance and therefore was portion of the Inventory may ask EPA told that the chemical substance is on Authority: 15 U.S.C 2604, 2607, and 2613. whether the substance is included in the the Inventory. ■ 2. In § 720.3: confidential Inventory. EPA will answer (7) A disclosure of a confidential ■ a. Revise paragraph (c). such an inquiry only if EPA determines chemical identity to a person with a ■ b. Remove paragraph (kk). that the person has a bona fide intent to bona fide intent to manufacture

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(including import) the particular submitted electronically to EPA via CDX (3) A description of the research and chemical substance will not be using e-PMN software. Requests for development activities conducted to considered a public disclosure of suspensions of 15 days or less may also date, and the purpose for which the confidential business information under be submitted electronically to EPA via person will manufacture (including section 14 of the Act. CDX using e-PMN software. See import) or process the chemical * * * * * § 720.40(a)(2)(ii) for information on how substance. ■ 4. In § 720.40, revise paragraphs to access the e-PMN software. The * * * * * (a)(2)(i), (a)(2)(ii) introductory text, and running of the notice review period will (d) EPA will review the information (e)(1) and (3) to read as follows: be suspended upon approval of the submitted by the manufacturer written request by the Director or her or (including importer) or processor under § 720.40 General. his delegate. paragraph (b) of this section to (a) * * * * * * * * determine whether that person has (2) * * * (e) * * * shown a bona fide intent to manufacture (i) Submission via CDX. TSCA section (2) If a manufacturer (including (including import) or process the 5 notices and any related support importer) which withdrew a notice later chemical substance. If necessary, EPA documents must be submitted resubmits a notice for the same will compare this information to the electronically to EPA via CDX. Prior to chemical substance, a new notice information requested for the submission to EPA via CDX, such review period begins. confidential chemical substance under notices must be generated and § 720.85(b)(3)(iii) of this chapter. completed on EPA Form 7710–25 using PART 721—[AMENDED] (e) If the manufacturer (including e-PMN software. importer) or processor has shown a (ii) You can access the e-PMN ■ 6. The authority citation for part 721 bona fide intent to manufacture software as follows: continues to read as follows: (including import) or process the * * * * * Authority: 15 U.S.C. 2604, 2607, and substance and has provided sufficient (e) Agency or joint submissions—(1) A 2625(c). unambiguous chemical identity manufacturer (including importer) may ■ 7. In § 721.11, revise paragraphs (a), information to enable EPA to make a designate an agent to assist in (b) introductory text, (b)(1), (2), and (3), conclusive determination as to the submitting the notice. If so, only the (d), (e) and (f) to read as follows: identity of the substance, EPA will manufacturer (including importer), and inform the manufacturer (including not the agent, signs the certification on § 721.11 Applicability determination when importer) or processor whether the the form. the specific chemical identity is chemical substance is subject to this (2) * * * confidential. part and, if so, which section in subpart (3) Only the Authorized Official (AO) (a) A person who intends to E of this part applies. of a submitting company can certify manufacture (including import) or (f) A disclosure to a person with a initial notices and submit all TSCA process a chemical substance which is bona fide intent to manufacture section 5 documents. described by a generic chemical name in (including import) or process a (i) An AO can authorize other persons subpart E of this part may ask EPA particular chemical substance that the to be non-certifying AOs who may whether the substance is subject to the substance is subject to this part will not conduct all section 5 business on behalf requirements of this part. EPA will be considered public disclosure of of the submitting company except for answer such an inquiry only if EPA confidential business information under certifying and submitting initial notices determines that the person has a bona section 14 of the Act. to EPA via CDX. fide intent to manufacture (including (ii) An AO may grant access to a * * * * * import) or process the chemical support registrant to edit section 5 substance for commercial purposes. PART 723—[AMENDED] documents. (b) To establish a bona fide intent to ■ * * * * * manufacture (including import) or 8. The authority citation for part 723 ■ 5. In § 720.75: process a chemical substance, the continues to read as follows: ■ a. Revise paragraph (b)(2). person who proposes to manufacture Authority: 15 U.S.C. 2604. ■ b. Remove paragraphs (b)(3) and (4). (including import) or process the ■ 9. In § 723.50: ■ c. Revise paragraph (e)(2). substance must submit the request to ■ a. Revise paragraph (j)(6)(ii)(B). The revisions read as follows: EPA via CDX. Prior to submission to ■ b. Remove paragraph (j)(6)(ii)(C). § 720.75 Notice review period. EPA via CDX, such bona fide intents to The revision reads as follows: manufacture (including import) or * * * * * § 723.50 Chemical substances (b) * * * process must be generated and manufactured in quantities of 10,000 (2)(i) Oral requests. A request for a completed using e-PMN software. See kilograms or less per year, and chemical suspension of 15 days or less may be 40 CFR 720.40(a)(2)(ii) for information substances with low environmental made orally, including by telephone, to on how to access the e-PMN software. releases and human exposures. the submitter’s EPA contact for that A bona fide intent to manufacture * * * * * notice. Any request for a suspension (including import) or process must (j) * * * exceeding 15 days must be submitted in contain: (6) * * * the manner set forth in paragraph (1) The specific chemical identity of (ii) * * * (b)(2)(ii) of this section. The running of the chemical substance that the person (B) The notification must be the notice review period will be intends to manufacture (including submitted electronically to EPA via CDX suspended upon approval of the oral import) or process. as a support document to the original request by the Director or her or his (2) A signed statement that the person notification. Prior to submission to EPA delegate. intends to manufacture (including via CDX, such notices must be generated (ii) Written requests. Requests for import) or process the chemical and completed using the e-PMN suspensions exceeding 15 days must be substance for commercial purposes. software. See 40 CFR 720.40(a)(2)(ii) for

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information on how to access the e-PMN (d) EPA will review the information DEPARTMENT OF COMMERCE software. submitted by the manufacturer * * * * * (including importer) or processor under National Oceanic and Atmospheric this paragraph to determine whether Administration PART 725—[AMENDED] that person has shown a bona fide intent to manufacture (including import) or 50 CFR Part 648 ■ 10. The authority citation for part 725 process the microorganism. If necessary, [Docket No. 130822745–5611–02] continues to read as follows: EPA will compare this information to RIN 0648–BD64 Authority: 15 U.S.C. 2604, 2607, 2613 and the information requested for the 2625. confidential microorganism under Fisheries of the Northeastern United ■ 11. In § 725.15, revise paragraphs § 725.85(b)(3)(iii). States; Atlantic Surfclam and Ocean (a)(2), (b)(2) introductory text, (b)(2)(ii) (e) In order for EPA to make a Quahog Fisheries and (iii), (d), (e), (f), and (g) to read as follows: conclusive determination of the AGENCY: National Marine Fisheries microorganism’s status, the proposed Service (NMFS), National Oceanic and § 725.15 Determining applicability when manufacturer (including importer) or Atmospheric Administration (NOAA), microorganism identity or use is processor must show a bona fide intent Commerce. confidential or uncertain. to manufacture (including import) or ACTION: Final rule. (a) * * * process the microorganism and must (2) Uncertain microorganism identity. provide sufficient information to SUMMARY: This final rule implements an The current state of scientific establish identity unambiguously. After information collection program for the knowledge leads to some imprecision in sufficient information has been Atlantic surfclam and ocean quahog describing a microorganism. As the state provided, EPA will inform the fisheries. The information collection of knowledge increases, EPA will be manufacturer (including importer) or program is intended to obtain more developing policies to determine processor whether the microorganism is detailed information about individuals whether one microorganism is subject to this part and if so, which and businesses that hold fishery quota equivalent to another. Persons intending sections of this part apply. allocation in these individual to conduct activities involving transferable quota fisheries. This action microorganisms may inquire of EPA (f) If the microorganism is found on is necessary to ensure that the Mid- whether the microorganisms they intend the confidential version of the Atlantic Fishery Management Council to manufacture (including import) or Inventory, in § 725.239 or in subpart M has the information needed to develop process are equivalent to specific of this part, EPA will notify the a future management action intended to microorganisms described on the person(s) who originally reported the establish an excessive share cap in these Inventory, in § 725.239, or in subpart M microorganism that another person fisheries. of this part. (whose identity will remain DATES: Effective January 1, 2016. (b) * * * confidential, if so requested) has ADDRESSES: Written comments (2) To establish a bona fide intent to demonstrated a bona fide intent to regarding the burden-hour estimates or manufacture (including import) or manufacture (including import) or other aspects of the collection-of- process a microorganism, the person process the microorganism and information requirements contained in who proposes to manufacture (including therefore was told that the this final rule may be submitted to the import) or process the microorganism microorganism is on the Inventory, in Greater Atlantic Regional Fisheries must submit the request to EPA via § 725.239, or in subpart M of this part. Office and by email to OIRA_ CDX. Prior to submission to EPA via (g) A disclosure to a person with a [email protected], or fax to CDX, such bona fide intents to (202) 395–7285. manufacture (including import) or bona fide intent to manufacture FOR FURTHER INFORMATION CONTACT: process must be generated and (including import) or process a particular microorganism that the Douglas Potts, Fishery Policy Analyst, completed using e-PMN software. See (978) 281–9341. 40 CFR 720.40(a)(2)(ii) for information microorganism is on the Inventory, in SUPPLEMENTARY INFORMATION: on how to access the e-PMN software. § 725.239, or in subpart M of this part A bona fide intent to manufacture will not be considered a public Background disclosure of confidential business (including import) or process must Section 402(a)(1) of the Magnuson- contain the following information: information under section 14 of the Act. Stevens Fishery Conservation and * * * * * * * * * * Management Act (Magnuson-Stevens (ii) A signed statement certifying that [FR Doc. 2015–17737 Filed 7–17–15; 8:45 am] Act) authorizes the Secretary of the submitter intends to manufacture BILLING CODE 6560–50–P Commerce to implement an information (including import) or process the collection program if a fishery microorganism for commercial management council determines that purposes. additional information would be (iii) A description of research and beneficial for developing, development activities conducted with implementing, or revising a fishery the microorganism to date, management plan (FMP). The Mid- demonstration of the submitter’s ability Atlantic Fishery Management Council to produce or obtain the microorganism formally requested that NMFS from a foreign manufacturer, and the implement an information collection purpose for which the person will program in the Atlantic surfclam and manufacture (including import) or ocean quahog individual transferable process the microorganism. quota (ITQ) fisheries. The purpose of * * * * * this information collection is to better

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identify individuals who hold or control citizenship or corporate control by U.S. permit holders ample time to complete ITQ allocation in these fisheries. The citizens. and submit the forms in order to receive Council will use the information their 2016 ITQ permits and 2016 cage 2. New Surfclam/Ocean Quahog ITQ collected to inform the development of tags before the start of the fishing year. Ownership Form a future management action intended to Many ITQ shareholders choose to establish an excessive share cap as part This final rule implements a new ITQ submit cage tags transfer requests in of the Council’s Surfclam/Ocean ownership form that must be submitted December, ahead of the new fishing Quahog FMP. along with the ITQ permit application year, so they can be processed and ready Currently, NMFS collects only basic form for a permit to be issued. This form before January 1. We will continue to information about the individuals or is being implemented to capture work to accommodate these requests for businesses that hold surfclam and ocean detailed ownership information, such as the industry. quahog ITQ allocations. This information on bank-held shares and information is collected at the time that identification of corporate officers, Comments and Responses an entity first acquires ITQ allocation major shareholders, and partners as well We published a proposed rule in the and is not routinely verified or updated. as any immediate family members who Federal Register on August 7, 2014, and The information collection program also hold ITQ permits. Corporations or accepted public comments until implemented in this action is intended other business entities that hold an ITQ September 8, 2014. After the comment to identify the specific individuals who permit will be required to identify their period closed, the Council requested have an ownership interest in surfclam corporate officers and all shareholders that we reopen the comment period to or ocean quahog ITQ allocation through who have a 10-percent or larger stake in allow for additional public comment to a corporation, partnership, or other the company. be submitted after the proposed action was discussed at a Council meeting. In business entity, or control the use of 3. ITQ Transfer Form Changes ITQ allocation through the use of long- response, we published an term contracts or other agreements. This This action modifies the existing ITQ announcement in the Federal Register action also ensures that the ownership transfer form to collect more detailed on October 2, 2014 (79 FR 59472), information on file remains up to date financial information about transactions announcing that the comment period by modifying the procedures for in which ITQ is transferred. Information was reopened until October 17, 2014. receiving and maintaining an ITQ about the allocation holder is removed, Altogether, we received comments from permit. as that is now collected through the ITQ 23 individuals. Nearly all of the This action also makes minor permit application and the ITQ comments received were from the corrections and clarifications to the ownership form. The ITQ transfer form surfclam and ocean quahog industry surfclam and ocean quahog regulations. now clarifies whether or not a including dealers, processors, permanent transfer of ITQ quota share harvesters, and surfclam and ocean Final Measures includes all of the cage tags for the quahog consumer product producers Full details and background on the current fishing year. This action also and manufacturers. All of these measures in this rule are explained in adds additional questions to better comments generally opposed the the proposed rule published on August understand the nature of the transfer. information collection program, and 7, 2014 (79 FR 46233), and are not This includes a requirement to submit raised very similar issues. Related repeated here. total price paid for the transfer, comments have been combined in our 1. Surfclam/Ocean Quahog ITQ Permit including any fees; broker fees paid, if summary of comments and responses below. Two comments received Annual Renewal applicable; whether the transfer is part of a long-term (more than 1 year) generally supported the program, but This final rule revises the regulations contract; if so, the duration of the provided no supporting information. at § 648.74 to change the validity period contract and whether the price is fixed The Mid-Atlantic Fishery Management for ITQ Permits. ITQ permits will now or flexible; and any other conditions on Council submitted a comment informing expire at the end of the year and need the transfer. us of a motion that was made at the to be renewed annually. This annual Council meeting on October 7, 2014, renewal requirement better ensures that 4. Regulatory Corrections and regarding the information collected on ITQ-related information is kept current. Clarifications the ITQ transfer form. Expired permits are eligible for renewal This final rule revises the regulations Comment 1: Numerous comments until the last day of the year for which at § 648.74(a)(1)(i) to correct a cross expressed concern that an excessive they are needed. Permits not renewed reference to 46 U.S.C. 12103(b), which share cap is not necessary for these by the deadline are considered defines the persons or entities that are fisheries, and, therefore, there is no voluntarily relinquished and will have eligible to own a documented vessel. reason to collect additional information their quota share and eligibility This rule also corrects several cross to help determine such caps. permanently revoked. This is commonly references in § 648.14(j) to other Response: Two sections of the referred to as a ‘‘renew or lose’’ sections of the regulations in part 648 Magnuson-Stevens Act address the need provision. To renew a permit, an annual pertaining to surfclam and ocean to prevent an individual or corporation ITQ permit application must be quahogs. Finally, the regulations at from acquiring an excessive share of completed. The ITQ permit application § 648.74(b)(3) specifying when the fishing privileges: National Standard 4 form requires information such as the Regional Administrator may deny a and section 303A(c)(5)(D). Amendment applicant’s name, address, telephone transfer of ITQ quota share or cage tags 8 to the Atlantic Surfclam and Ocean number, and date of birth (or taxpayer have been made more detailed and Quahog FMP, which established the ITQ identification number for businesses). clear. fishery in 1990, cited existing anti-trust ITQ permit holders are also required to The new permit requirements in this laws as being sufficient to meet the verify that they are eligible to own a rule are effective with the start of the requirements of National Standard 4, U.S. Coast Guard documented vessel, as next fishing year on January 1, 2016. ‘‘that no particular individual, defined under 46 U.S.C. 12103(b), However, the new forms will be corporation, or other entity acquires an which serves as a check of U.S. distributed in early fall to give ITQ excessive share of such privileges.’’

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Section 303A was added to the Act by Share Limits for ITQ Fisheries; permit which would result in unfair loss the Magnuson-Stevens Fishery www.nefsc.noaa.gov/publications/crd/ of valuable ITQ quota share. Conservation and Management crd1122/). In a series of public meetings, Response: NMFS understands that Reauthorization Act of 2006. This a special Council workgroup met and there are concerns with losing the section contains provisions and considered the recommendations of fishing rights associated with ITQ quota requirements for Limited Access these reports, reviewed how ownership share if a permit is not renewed. Privilege Programs (LAPPS), which information is collected in other However, based on the comments include ITQ programs. These added fisheries around the country, reviewed received, there appears to be a provisions include section the information currently collected in misunderstanding of how this provision 303A(c)(5)(D)(i), which requires LAPPs this fishery, and then devised a suite of would function. While a number of to ensure limited access privilege data elements that would provide the these comments seemed to be under the holders do not acquire an excessive information the Council would need impression the rights to a permit would share of the total limited access when developing an excessive shares be lost immediately following the privileges in the program, by cap. These recommendations were permit’s expiration date, this is not the ‘‘establishing a maximum share, detailed in a white paper that was case. To clarify, an ITQ permit and expressed as a percentage of the total considered and approved by the quota share are not lost the day the limited access privileges, that a limited Council. Without the additional permit expires. Although the permit access privilege holder is permitted to information this action will collect, the cannot be used to harvest fish after it hold, acquire, or use.’’ Because the FMP Council may not have the information has expired, the applicant is eligible to does not currently include an excessive necessary to make informed decisions renew the permit for the entire share cap expressed as a percentage of on excessive share caps. When the following year before the permit would the total allocated quota, it is out of Council ultimately establishes an be considered surrendered. For compliance with this provision of the excessive shares cap, it is possible that example, if an ITQ permit expires on Magnuson-Stevens Act. not all of these data elements will be December 31, 2015, the applicant has This information collection program necessary to effectively monitor the cap. until December 31, 2016, to renew the is an important part of the Council’s At that time, this collection will be permit before it is considered efforts to establish a cap that meets this reevaluated, and data elements may be surrendered. It would not be requirement. See the response to added, removed, or modified to address surrendered when it expires on Comment 2 for additional rationale for the specific information needed to December 31, 2015. why this information collection is monitor the cap. All limited access vessel permits in necessary. the Greater Atlantic Region have been We agree that some business Comment 2: Several comments subject to these renew-or-lose expressed concern that we are generally transactions are confidential. Pursuant provisions since they were implemented collecting too much information and to section 402(b) of the Magnuson- in the mid-1990s. The Golden Tilefish that it is not necessary or applicable in Stevens Act, information submitted in Individual Fishing Quota program has helping determine excessive shares. compliance with the Act is confidential, operated under renew-or-lose provisions These comments expressed concern that and would not be distributed or made for tilefish quota share since the we should not collect this information publicly available. These confidentiality program’s inception in 2010. If a permit because it involves business requirements of the Magnuson-Stevens is not renewed, NMFS makes multiple transactions that should be confidential. Act apply to information collected as a attempts to notify the permit holder of Response: We understand that this result of this action. Therefore, the the need to renew the permit well before information collection includes more collected information may be used to the deadline. Permanent loss of fishing specific detail than is collected in other conduct analysis by NMFS, or Council rights has occurred for these other fisheries in the region. However, prior staff who are subject to confidentiality fisheries. However, loss of the right to reports and analyses for these fisheries agreements. Results of this analysis a permit is rarely due to a clerical error suggest this information is necessary could only be presented in an aggregate such as simply forgetting to renew a and appropriate to determine current form, which protects any confidential permit. We believe such instances are ownership and control of allocations in information. infrequent given the system that these fisheries. In the surfclam and Comment 3: Nearly all of the provides a year to renew after permit ocean quahog fisheries, there is a series comments received against this action expiration and multiple reminders prior of complex corporate and business were opposed to the provision that ITQ to loss of fishing rights. relationships involving control of quota quota share could be considered Further, the ITQ permit must be shares. A 2002 GAO report on this ITQ permanently relinquished if the current and valid in order for ITQ to be program suggested that NMFS did not shareholder’s ITQ permit is not renewed traded or for fishing activity to occur gather sufficient ownership information before the end of the fishing year. These using ITQ. In 2014, there were 41 ocean to appropriately characterize the comments explain that banks and other quahog ITQ permits with quota share amount of consolidation in the fishery. lending institutions hold much of the and 70 surfclam ITQ permits with quota In 2011, NMFS and the MAFMC ITQ quota share in the surfclam and share. Of these 111 ITQ permits, all but contracted an economic consulting firm ocean quahog fisheries. Commenters 15 transferred allocation, used cage tags to examine and report on potential expressed concern that lenders could to land clams, or otherwise participated excessive share caps in this fishery view the potential loss of quota share as in the fishery in a manner that will now (Mitchell, Peterson and Willig. an unacceptable investment risk. require a current valid permit. The Recommendations for Excessive Share Commenters stated this could result in majority of those permits not used in Limits in the SCOQ Fisheries. May 3, the banks leaving the industry and 2014, were used in the preceding two 2011), and subsequently convened a discontinuing investment in the years. Therefore, it is likely that most if panel of independent reviewers to Atlantic surfclam and ocean quahog not all permits will be renewed each evaluate the report (Summary of fisheries. These commenters further year in order for ITQ shareholders to Findings by the Center for Independent asserted that it is too easy to make an continue participating in the fishery as Experts Regarding Setting Excessive administrative error of not renewing a they have in previous years. As a result,

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there would be little to no threat of an text in the proposed rule did not fully [email protected], or fax to ITQ shareholder permanently losing reflect these requirements. These 202–395–7285. his/her quota share. requirements have been added at Notwithstanding any other provision Certainly, lenders will continue to § 648.74(a)(1)(ii)(C) and (b)(3) in this of the law, no person is required to evaluate investment risk as it relates to final rule to reflect these provisions as respond to, and no person shall be these fisheries. We believe it unlikely they were described in the preamble of subject to penalty for failure to comply that investors will find the ‘‘renew or the proposed rule. with, a collection of information subject lose’’ provision to be an additional risk to the requirements of the PRA, unless that would preclude investment. Classification that collection of information displays a Comment 4: The Council submitted a The Administrator, Greater Atlantic currently valid OMB control number. comment informing us of a motion Region, NMFS, determined that this approved at the October 2014 Council action is necessary for the conservation List of Subjects in 50 CFR Part 648 meeting to request we remove much of and management of the Atlantic Fisheries, Fishing, Reporting and the information to be collected on the surfclam and ocean quahog fishery and recordkeeping requirements. ITQ transfer form. that it is consistent with the Magnuson- Dated: July 14, 2015. Response: While the motion was Stevens Fishery Conservation and Samuel D. Rauch III, supported by a majority of the Council Management Act and other applicable Deputy Assistant Administrator for members present, the vote was not laws. Regulatory Programs, National Marine unanimous and there were members This final rule has been determined to Fisheries Service. who expressed a strong interest in be not significant for purposes of having this information available when Executive Order 12866. For the reasons set out in the they consider an excessive shares cap. The Chief Counsel for Regulation of preamble, 50 CFR part 648 is amended Removing these fields from the ITQ the Department of Commerce certified as follows: transfer form would be contrary to the to the Chief Counsel for Advocacy of the PART 648—FISHERIES OF THE Small Business Administration during recommendations in the white paper NORTHEASTERN UNITED STATES prepared by the Council’s special the proposed rule stage that this action workgroup and the 2011 report would not have a significant economic ■ 1. The authority citation for part 648 Economic Guidelines for Excessive impact on a substantial number of small continues to read as follows: Share Limits in the Surfclam and Ocean entities. The factual basis for this Authority: 16 U.S.C. 1801 et seq. Quahog Fisheries. Currently, no certification was published in the information is collected on the financial proposed rule and is not repeated here. ■ 2. In § 648.14, revise paragraphs aspects of allocation transfers in the No comments were received regarding (j)(1)(ii), (j)(2)(i), (j)(3)(v), (j)(3)(vi), surfclam and ocean quahog ITQ fishery. this certification. As a result, a (j)(5)(ii), (j)(5)(iv), (j)(5)(v), (j)(6)(ii), and Similar programs around the country regulatory flexibility analysis was not (j)(6)(iii) to read as follows: routinely collect information about the required and none was prepared. § 648.14 Prohibitions. price paid for allocation. This This final rule contains a change to a information can provide valuable collection-of-information requirement * * * * * insight into the market for quota or long- subject to the Paperwork Reduction Act (j) * * * term contracts and agreements that (PRA) and which has been approved by (1) * * * (ii) Shuck surfclams or ocean quahogs would not otherwise be apparent. These the Office of Management and Budget harvested in or from the EEZ at sea, additional details about transfers can (OMB) under OMB Control Number unless permitted by the Regional illuminate situations where individuals 0648–0240: Northeast Region Surfclam Administrator under the terms of or companies exert effective control and Ocean Quahog Individual § 648.75. over ITQ allocation, even if they do not Transferable Quota (ITQ) directly hold the quota share. Administration. The public reporting * * * * * As mentioned above in the response burden is estimated to average 5 (2) Transfer and purchase. (i) Receive to Comment 2, we anticipate that the minutes per response for the application for a commercial purpose other than specific data elements will be for surfclam/ocean quahog ITQ permit; solely for transport on land, surfclams reevaluated and revised when an 60 minutes per response for new or ocean quahogs harvested in or from excessive share cap is implemented. For entrants completing the surfclam/ocean the EEZ, whether or not they are landed these reasons, we continue to support quahog ITQ ownership form and to under an allocation under § 648.74, the inclusion of all of the proposed average 5 minutes per response when unless issued a dealer/processor permit elements of this information collection the form is pre-filled for renewing under this part. program, at least for the short term. entities; and the application to transfer * * * * * Therefore, this action implements the surfclam/ocean quahog ITQ are (3) * * * ITQ transfer form as described in the estimated to average 5 minutes per (v) Possess an empty cage to which a proposed rule. response, including the time for cage tag required by § 648.77 is affixed, reviewing instructions, searching or possess any cage that does not Changes From Proposed Rule existing data sources, gathering and contain surfclams or ocean quahogs and There are no substantive changes from maintaining the data needed, and to which a cage tag required by § 648.77 the measures described in the proposed completing and reviewing the collection is affixed. rule. The preamble to the proposed rule of information. The costs burden (vi) Land or possess, after offloading, explained that banks holding quota associated for all of the requirements is any cage holding surfclams or ocean share as collateral on a loan would not $.49 per submission for postage. Send quahogs without a cage tag or tags need to provide as much detail about comments regarding these burden required by § 648.77, unless the person ownership if the borrower maintains a estimates or any other aspect of this data can demonstrate the inapplicability of valid ITQ permit and the bank could collection, including suggestions for the presumptions set forth in only transfer quota share or cage tags to reducing the burden, to NMFS (see § 648.77(h). the borrower. However, the regulatory ADDRESSES) and by email to OIRA_ * * * * *

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(5) * * * ■ 3. Revise § 648.74 to read as follows: not be approved, and a new permit may (ii) Land unshucked surfclams and not be issued before the start of the next ocean quahogs harvested in or from the § 648.74 Individual Transferable Quota fishing year. An ITQ permit holder must (ITQ) Program. EEZ within the Maine mahogany renew his/her ITQ permit(s) on an quahog zone in containers other than (a) Annual individual allocations. annual basis by submitting an cages from vessels capable of carrying Each fishing year, the Regional application and an ownership form for cages unless, with respect to ocean Administrator shall determine the such permit prior to the end of the quahogs, the vessel has been issued a initial annual allocation of surfclams fishing year for which the permit is Maine mahogany quahog permit under and ocean quahogs for the next fishing required. Failure to renew a surfclam or this part and is not fishing for an year for each ITQ permit holder holding ocean quahog ITQ permit in any fishing individual allocation of quahogs under ITQ quota share pursuant to the year will result in any surfclam or ocean § 648.74. requirements of this section. For each quahog ITQ quota share held by that species, the initial allocation for the ITQ permit holder to be considered * * * * * next fishing year is calculated by (iv) Offload unshucked ocean quahogs abandoned and relinquished as multiplying the quota share percentage specified in paragraph (a)(1)(ix) of this harvested in or from the EEZ within the held by each ITQ permit holder as of the Maine mahogany quahog zone from section. last day of the previous fishing year in (C) Lenders Holding ITQ Quota Share vessels not capable of carrying cages, which quota shareholders are permitted other than directly into cages, unless the as Collateral. A bank or other lender to permanently transfer quota share that holds ITQ quota share as collateral vessel has been issued a Maine percentage pursuant to paragraph (b) of mahogany quahog permit under this on a loan may be allowed to provide this section (i.e., October 15 of every less detailed information on the ITQ part and is not fishing for an individual year), by the quota specified by the allocation of quahogs under § 648.74. ownership form under the following Regional Administrator pursuant to conditions. (v) Land or possess ocean quahogs § 648.72. The total number of bushels of harvested in or from the EEZ within the (1) The lender certifies that the ITQ annual allocation shall be divided by 32 quota share is held solely as collateral Maine mahogany quahog zone after the to determine the appropriate number of effective date published in the Federal on a loan and the lender does not exert cage tags to be issued or acquired under any control over the use of the annual Register notifying participants that § 648.77. Amounts of annual allocation Maine mahogany quahog quota is no allocation of cage tags. of 0.5 cages or smaller created by this (2) The lender identifies the borrower, longer available for the respective division shall be rounded downward to fishing year, unless the vessel is fishing and the borrower maintains a valid ITQ the nearest whole number, and amounts permit including all required ownership for an individual allocation of ocean of annual allocation greater than 0.5 quahogs under § 648.74. information. cages created by this division shall be (3) The lender may only transfer quota (6) * * * rounded upward to the nearest whole (ii) Surfclams or ocean quahogs share or cage tags to the identified number, so that annual allocations are landed from a trip for which notification borrower. The borrower could then specified in whole cages. transfer the quota share or cage tags to was provided under § 648.15(b) or (1) Surfclam and ocean quahog ITQ § 648.74(b) are deemed to have been another party, if desired. permits. Surfclam and ocean quahog (iii) Issuance. Except as provided in harvested in the EEZ and count against ITQ allocations shall be issued in the subpart D of 15 CFR part 904, and the individual’s annual allocation, form of annual ITQ permits. The ITQ provided an application for such permit unless the vessel has a valid Maine permit shall specify the quota share is submitted by November 1, as mahogany quahog permit issued percentage held by the ITQ permit specified in paragraph (a)(1)(ii)(B) of pursuant to § 648.4(a)(4)(i) and is not holder and the annual allocation in this section, NMFS shall issue annual fishing for an individual allocation cages and cage tags for each species. ITQ permits on or before December 15, under § 648.74. (i) Eligibility. In order to be eligible to to allow allocation owners to purchase (iii) Surfclams or ocean quahogs hold a surfclam or ocean quahog ITQ cage tags from a vendor specified by the found in cages without a valid state tag permit, an individual must be eligible to Regional Administrator pursuant to are deemed to have been harvested in own a documented vessel under the § 648.77(b). the EEZ and are deemed to be part of an terms of 46 U.S.C. 12103(b). (iv) Duration. An ITQ permit is valid individual’s allocation, unless the vessel (ii) Application—(A) General. through December 31 of each fishing has a valid Maine mahogany quahog Applicants for a surfclam or ocean year unless it is suspended, modified, or permit issued pursuant to quahog ITQ permit under this section revoked pursuant to 15 CFR part 904, or § 648.4(a)(4)(i) and is not fishing for an must submit a completed ITQ permit revised due to a transfer of all or part individual allocation under § 648.74; or, application and a completed ITQ of the ITQ quota share or cage tag unless the preponderance of available ownership form on the appropriate allocation under paragraph (b) of this evidence demonstrates that he/she has forms obtained from NMFS. The ITQ section. surrendered his/her surfclam and ocean permit application and ITQ ownership (v) Alteration. An ITQ permit that is quahog permit issued under § 648.4 and form must be filled out completely and altered, erased, or mutilated is invalid. he/she conducted fishing operations signed by the applicant. The Regional (vi) Replacement. The Regional exclusively within waters under the Administrator will notify the applicant Administrator may issue a replacement jurisdiction of any state. Surfclams and of any deficiency in the application. permit upon written application of the ocean quahogs in cages with a Federal (B) Renewal applications. annual ITQ permit holder. tag or tags, issued and still valid Applications to renew a surfclam or (vii) Transfer. The annual ITQ permit pursuant to this part, affixed thereto are ocean quahog ITQ permit must be is valid only for the person to whom it deemed to have been harvested by the received by November 1 to be processed is issued. All or part of the ITQ quota individual allocation holder to whom in time for permits to be issued by share or the cage tag allocation specified the tags were issued or transferred December 15, as specified in paragraph in the ITQ permit may be transferred in under § 648.74 or § 648.77(b). (a)(1)(iii) of this section. Renewal accordance with paragraph (b) of this * * * * * applications received after this date may section.

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(viii) Fee. The Regional Administrator permit application or renewal process, specified in paragraph (b)(1) of this may, after publication of a fee and be issued a valid ITQ permit before section; provided that application for notification in the Federal Register, the end of such a grace period would such cage tag transfers may be made at charge a permit fee before issuance of result in the ITQ permit and any any time before December 10 of each the permit to recover administrative associated ITQ quota share being year. The transfer is effective upon the expenses. Failure to pay the fee will permanently forfeit. receipt by the transferee of written preclude issuance of the permit. (2) [Reserved] authorization from the Regional (ix) Abandonment or voluntary (b) Transfers—(1) Quota share Administrator. relinquishment. Any ITQ permit that is percentage. Subject to the approval of (3) Denial of ITQ transfer application. voluntarily relinquished to the Regional the Regional Administrator, part or all The Regional Administrator may reject Administrator, or deemed to have been of a quota share percentage may be an application to transfer surfclam or voluntarily relinquished for failure to transferred in the year in which the ocean quahog ITQ quota share or cage renew in accordance with paragraph transfer is made, to any person or entity tags for the following reasons: The (a)(1)(ii) of this section, shall not be with a valid ITQ permit under application is incomplete; the transferor reissued or renewed in a subsequent paragraph (a) of this section. Approval or transferee does not possess a valid year, except as specified in paragraph of a transfer by the Regional surfclam or ocean quahog ITQ permit (a)(1)(x) of this section. Administrator and for a new ITQ permit (x) Transitional grace period. A reflecting that transfer may be requested for the appropriate species; the transfer surfclam or ocean quahog quota share by submitting a written application for is not allowed under paragraph holder who does not submit a complete approval of the transfer and for issuance (a)(1)(ii)(C)(3) of this section; the application for an ITQ permit before the of a new ITQ permit to the Regional transferor’s or transferee’s surfclam or end of the 2016 fishing year, may be Administrator at least 10 days before the ocean quahog ITQ permit has been granted a grace period of up to one year date on which the applicant desires the sanctioned pursuant to an enforcement to complete the initial application transfer to be effective, in the form of a proceeding under 15 CFR part 904; or process, and be issued an ITQ permit, completed transfer form supplied by the any other failure to meet the before the quota share is considered Regional Administrator. The transfer is requirements of this subpart. Upon permanently relinquished. If an not effective until the new holder denial of an application to transfer ITQ individual is issued a 2016 ITQ permit, receives a new or revised ITQ permit allocation, the Regional Administrator but fails to renew that ITQ permit before from the Regional Administrator shall send a letter to the applicant the end of the 2017 fishing year, the reflecting the new quota share describing the reason(s) for the denial. Regional Administrator may allow a percentage. An application for transfer The decision by the Regional grace period until no later than July 1, may not be made between October 15 Administrator is the final decision of 2018, to complete the renewal process and December 31 of each year. the Department of Commerce; there is and retain the permit. A permit holder (2) Cage tags. Cage tags issued no opportunity for an administrative may not be issued cage tags or transfer pursuant to § 648.77 may be transferred appeal. quota share until a valid ITQ permit is at any time, and in any amount subject [FR Doc. 2015–17678 Filed 7–17–15; 8:45 am] issued. Failure to complete the ITQ to the restrictions and procedure BILLING CODE 3510–22–P

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Proposed Rules Federal Register Vol. 80, No. 138

Monday, July 20, 2015

This section of the FEDERAL REGISTER process. DOT posts these comments, and is unchanged since part 25 was contains notices to the public of the proposed without edit, including any personal introduced in 1965. issuance of rules and regulations. The information the commenter provides, to Section 25.631 requires the purpose of these notices is to give interested www.regulations.gov, as described in empennage structure be designed to persons an opportunity to participate in the the system of records notice (DOT/ALL– assure continued safe flight after impact rule making prior to the adoption of the final rules. 14 FDMS), which can be reviewed at with an eight-pound bird at VC at sea www.dot.gov/privacy. level, including consideration of control Docket: Background documents or system elements. This regulation was DEPARTMENT OF TRANSPORTATION comments received may be read at introduced at Amendment 25–23 http://www.regulations.gov at any time. (effective May 8, 1970) as a result of the Federal Aviation Administration Follow the online instructions for 1962 Vickers Viscount accident, which accessing the docket or go to Docket was caused by impact with a swan, 14 CFR Part 25 Operations in Room W12–140 of the estimated to weigh between 12 and 17 West Building Ground Floor at 1200 [Docket No. FAA–2015–2490] pounds, that damaged the horizontal New Jersey Avenue SE., Washington, stabilizer and elevator. Bird Strike Requirements for Transport DC, between 9 a.m. and 5 p.m., Monday Section 25.571 considers the rest of Category Airplanes through Friday, except Federal holidays. the airframe and requires the airplane be FOR FURTHER INFORMATION CONTACT: capable of continued safe flight after AGENCY: Federal Aviation Todd Martin, Airframe and Cabin Safety impact with a four-pound bird at VC at Administration (FAA), DOT. Branch, ANM–115, FAA, Transport sea level, and .85 VC at 8000 feet. This ACTION: Request for comments on bird Airplane Directorate, Aircraft regulation was introduced at strike requirements for transport Certification Service, 1601 Lind Avenue Amendment 25–45 (effective December category airplanes. SW., Renton, WA 98057–3356; 1, 1978) with some changes in the speed telephone (425) 227–1178; facsimile definition since then. A speed criterion SUMMARY: This document solicits public (425) 227–1232; email Todd.Martin@ is provided at 8000 feet to ensure comments on the need for, and the faa.gov. adequate bird strike resistance possible scope of, changes to the bird SUPPLEMENTARY INFORMATION: capability up to that altitude. strike certification requirements for In 1993, the FAA was developing a transport category airplanes. The FAA is Comments Invited notice of proposed rulemaking to not currently proposing a specific The FAA invites interested persons to establish a consistent eight-pound bird regulatory action. The purpose of this comment on the need for, and the requirement for all structures. The FAA request is to gather comments from possible scope of, changes to the bird decided instead to task the Aviation airplane manufacturers and other strike requirements for transport Rulemaking Advisory Committee interested parties on this subject. category airplanes by submitting written (ARAC) to evaluate the bird strike DATES: Send comments by November data, views, or arguments as they may requirements and make 17, 2015. desire. We have conducted a review of recommendations. The working group Comments to: [email protected]. bird strike data, and we are considering completed its deliberations in 2003 ADDRESSES: Send comments, identified whether to revise the requirements, as without reaching agreement. All by Docket No. FAA–2015–2490, using described in this document. We invite members in the working group, except any of the following methods: comments relating to the technical or the FAA, favored reducing the eight- • Federal eRulemaking Portal: Go to economic impact that might result from pound bird requirement in § 25.631 to http://www.regulations.gov and follow any of the rule changes discussed four pounds, thus establishing a the online instructions for sending your herein, as well as any alternative consistent four-pound bird requirement comments electronically. suggestions. Substantive comments for all structures. Other changes to the • Mail: Send comments to Docket should be accompanied by estimates of requirements were considered by the Operations, M–30; U.S. Department of their economic impact if possible. All group, but none were adopted. The Transportation, 1200 New Jersey comments received by the closing date working group report is available at: Avenue SE., Room W12–140, West for comments will be considered by the http://www.faa.gov/regulations_ Building Ground Floor, Washington, DC FAA. policies/rulemaking/committees/ 20590–0001. documents/media/TAEgshT1- • Hand Delivery or Courier: Take Background 031593.pdf. comments to Docket Operations in Bird strike requirements for transport More recently, the National Room W12–140 of the West Building category airplanes are specified in Title Transportation Safety Board (NTSB) Ground Floor at 1200 New Jersey 14, Code of Federal Regulations (14 issued the following Safety Avenue SE., Washington, DC, between 9 CFR), part 25, and vary depending on Recommendation to the FAA as a result a.m. and 5 p.m., Monday through the structural component being of a fatal Cessna 500 accident that Friday, except Federal holidays. evaluated. Section 25.775 requires occurred in 2008: A–09–072, ‘‘Revise • Fax: Fax comments to Docket windshields and their supporting the bird-strike certification requirements Operations at 202–493–2251. structure withstand, without for Part 25 airplanes so that protection Privacy: In accordance with 5 U.S.C. penetration, impact with a four-pound from in-flight impact with birds is 553(c), DOT solicits comments from the bird at VC (design cruising speed) at sea consistent across all airframe structures. public to better inform its rulemaking level. This regulation has been in place Consider the most current military and

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civilian bird-strike database information exceeded that specified in current part requirements. However, in some cases, and trends in bird populations in 25 requirements. that energy level is exceeded. drafting this revision.’’ In each of the bird strike events To determine the adequacy of current Sample of Bird Strike Event Data shown below, the FAA estimates that bird strike certification requirements, The severity of a bird strike depends the energy level of the strike exceeded the FAA reviewed a number of reports, primarily on kinetic energy, which is that specified in current requirements. including the 2003 ARAC report, and proportional to mass times velocity This is not an exhaustive list; these are other reports that address bird just some examples of events that squared. Bird strikes involving birds populations. We also reviewed recent occurred in the US since the 2008 greater than four pounds occur often, bird strike event data and compared the Cessna accident. For these events, we but usually at speeds below the design energy levels of bird strike events to the estimated the energy level of the event energy levels prescribed in the current cruising speed, VC. Therefore, the and compared it to the current four- requirements. We found numerous bird energy level of such strikes is usually pound bird requirement specified in strike events in which the energy level below that specified in current §§ 25.571 and 25.775.

RECENT EXAMPLES OF BIRD STRIKE EVENTS IN WHICH THE ENERGY LEVEL EXCEEDED THE CURRENT AIRPLANE-LEVEL STANDARD

[4 Pound Bird at VC]

1. Energy level approximately 1.8 times current certification standard: Date: 4 March 2008. Aircraft: Cessna Citation Model 500. Airport: Wiley Post (OK). Phase of Flight: Climb (3,100′ MSL (mean sea level)). Estimated Airspeed: 198 KTAS (knots true airspeed). Effect on Flight: Crashed. Wildlife Species: American white pelican (mean weight 12.5 lb.). Multiple birds. Damage: Aircraft destroyed. Five fatalities. Shortly after takeoff, the airplane flew through a flock of birds. There was no evidence that any pieces of the airplane separated in flight. Bird residues were identified on the right horizontal stabilizer and the right side of the vertical stabilizer. 2. Energy level approximately 2.3 times current certification standard: Date: 8 April 2008. Aircraft: Bombardier Challenger 600. Airport: Colorado Springs (CO). Phase of Flight: Climb (8,000′ MSL). Estimated Airspeed: 260 KTAS. Effect on Flight: Precautionary landing. Wildlife Species: American white pelican (mean weight 12.5 lb.). Multiple birds. Damage: One bird penetrated the fuselage below the cockpit windows, through the forward pressure bulkhead and into the cockpit. Both engines ingested at least 1 bird. The #1 engine had fan damage; the #2 engine lost power and had a dented inlet lip. Noise and wind in the flightdeck. The left engine had high vibration levels. The fuselage skin and forward pressure bulkhead were penetrated and contained bird matter. The left engine thrust reverser torque box assembly and pylon tracks were bent, and the engine cowl supports were broken. 3. Energy level approximately 1.5 times current certification standard: Date: 3 February 2009. Aircraft: Boeing 757–200. Airport: Denver International (CO). Phase of Flight: Climb (7,500′ MSL). Estimated Airspeed: 270 KTAS (Airspeed not recorded. Airspeed estimate assumes airplane was flying 10 knots below 250 KIAS speed re- striction. At 7500′ MSL, 250 KIAS is approximately equal to 280 KTAS). Effect on Flight: Emergency landing. Wildlife Species: Bald eagle (mean weight 10.4 lb.). Single bird. Damage: Bird hit right side of engine cowling making a large dent before entering the engine where it damaged all fan blades. 4. Energy level approximately 4.2 times current certification standard: Date: 10 August 2010. Aircraft: Embraer 145. Airport: Salt Lake City International (UT). Phase of Flight: Approach (11,000′ MSL). Estimated Airspeed: 290 KTAS. Effect on Flight: Landed using back up radio. Wildlife Species: American white pelican (mean weight 12.5 lb.). Multiple birds. Damage: Birds punctured the nose of the aircraft between the nose cone and windshield. The birds damaged the skin, stringers, structural mounts and various avionics equipment. One bird penetrated the airplane’s skin and entered the forward avionics bay. The captain lost a number of his primary instruments. 5. Energy level approximately 2.3 times current certification standard: Date: 08 November 2010. Aircraft: Bombardier DHC–8. Airport: Los Angeles International (CA). Phase of Flight: Approach (6,600′ MSL). Estimated Airspeed: 243 KTAS. Effect on Flight: Emergency landing. Wildlife Species: Common loon (mean weight 9.1 lb.). Single bird.

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RECENT EXAMPLES OF BIRD STRIKE EVENTS IN WHICH THE ENERGY LEVEL EXCEEDED THE CURRENT AIRPLANE-LEVEL STANDARD—Continued

[4 Pound Bird at VC] Damage: Bird impact resulted in a 12-inch hole in the right wing leading edge, and internal structural damage to the right wing and fuel tank. 6. Energy level approximately 1.2 times current certification standard: Date: 15 November 2010. Aircraft: Embraer 170. Airport: Minneapolis-St. Paul International (MN). Phase of Flight: Climb (5000′ MSL). Estimated Airspeed: 270 KTAS. Effect on Flight: Precautionary landing. Wildlife Species: Snow goose (mean weight 5.8 lb.). Multiple birds. Damage: Radome, engine, fuselage. Autothrottle system disengaged. First officer’s primary flight display had alert flags for the indicated airspeed and altitude parameters. Substantial damage to the radome and its underlying structural components. The forward pressure bulkhead web contained a dent and puncture. The left engine compressor section was damaged. 7. Energy level approximately 1.4 times current certification standard: Date: 01 November 2011. Aircraft: Airbus 320. Airport: Minneapolis-St Paul International (MN). Phase of Flight: Climb (3300′ MSL). Estimated Airspeed: 220 KTAS. Effect on Flight: Precautionary landing, emergency declared. Wildlife Species: Tundra swan (mean weight 14.8 lb.). Single bird. Damage: Bird hit right side of nose. Substantial damage to the radome, nose, #2 engine and forward pressure bulkhead. 8. Energy level approximately 1.8 times current certification standard: Date: 25 October 2012. Aircraft: Boeing 757–200. Airport: Boise Air Terminal (ID). Phase of Flight: Climb (14,000′ MSL). Estimated Airspeed: 390 KTAS. Effect on Flight: Precautionary landing. Wildlife Species: Snow goose (mean weight 5.8 lb.). Multiple birds. Damage: The radome was penetrated and the bulkhead was punctured. There was extensive damage to the #2 engine. 9. Energy level approximately 2.2 times current certification standard: Date: 12 October 2013. Aircraft: Cessna 525. Airport: Lincoln (NE). Phase of Flight: Climb (6400′ MSL). Estimated Airspeed: 220 KTAS. Effect on Flight: Precautionary landing. Wildlife Species: American white pelican (mean weight 12.5 lb.). Single bird. Damage: Substantial damage to the outer right wing spar.

These event data, including estimated damage, major damage to electrical, have increased markedly in the last few airplane altitude and airspeed, are flight control and fuel systems has decades and adapted to living in urban derived from the following reports: occurred, and there have been dozens of environments, including airports. For 1. The FAA Wildlife Strike Database, incidents in which the flight deck was example, the resident (non-migratory) available at: http://www.faa.gov/ penetrated. Canada goose population in the USA airports/airport_safety/wildlife. Bird Population Trends and Canada increased from about 0.5 2. The FAA Aviation Safety million to 3.8 million from 1980 to 2013 Information Analysis and Sharing The bird strike threat has increased, (Dolbeer et al. 2014, U.S. Fish and especially the threat due to larger birds. (ASIAS) System, available at: http:// Wildlife Service. 2013). During the same In a report commissioned by the FAA, www.asias.faa.gov. This includes the time period, the North American snow FAA Accident/Incident Data System, Assessment of Wildlife Strike Risk to goose population increased from about and the NTSB Aviation Accident and Airframes; Herricks, Mankin, and 2.1 million to 6.6 million birds (U.S. Incident Data System. Shaeffer; December 2002; the authors 3. National Transportation Safety wrote, ‘‘The findings of this report, Fish and Wildlife Service. 2013). Other Board. 2009. Aircraft Accident Report: supported by other literature, indicate large-bird species that have shown Crash of Cessna 500, N113SH, that future operational environments for significant population increases from Following an In-Flight Collision with aircraft can be expected to contain larger 1980 to 2012 include bald eagles (6.4 Large Birds, Oklahoma City, Oklahoma, numbers of birds, and larger numbers of percent annual rate of increase), wild March 4, 2008. Aircraft Accident Report birds with weights greater than four turkeys (9.5 percent), turkey vultures NTSB/AAR–09/05. Washington, DC. pounds.’’ (2.7 percent), American white pelicans In addition to the events listed above, According to Wildlife Strikes to Civil (7.9 percent), double-crested cormorants there are hundreds of examples of bird Aircraft in the United States, 1990– (6.1 percent), sandhill cranes (5.9 strike events in which the energy level 2013, US Depts. of Transportation and percent), great blue herons (1.2 percent), did not exceed current requirements, Agriculture, July 2014: ‘‘Many and ospreys (3.0 percent, Sauer et al. but substantial damage to the airframe populations of large bird and mammal 2014). Dolbeer and Begier (2013) occurred. In addition to structural species commonly involved in strikes examined the estimated population

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trends and numbers for the 21 species obviously introduces a number of 5. Should the 0.85 speed reduction of birds in North America with mean significant risks to the airplane. factor at 8000 feet, currently specified in body masses greater than 4 pounds and Currently, there is no requirement that § 25.571, be removed? at least 10 strikes with civil aircraft from specifically prohibits penetration of the 6. Should the speed criterion for bird 1990–2012. Of these 21 species, 17 had flight deck through structure other than strikes be based on VMO rather than VC? shown population increases from 1990– the windshield. 2012 with a net gain of 17 million birds. 3. The bird strike threat has increased, Conclusion Previous research had documented that especially the threat due to larger birds. 13 of the 14 bird species in North Therefore, current fleet history may not This document solicits public America with mean body masses greater be indicative of what to expect in the comments on the need for, and the than 8 pounds showed significant future. possible scope of, changes to the bird population increases from 1970 to the 4. Bird strike events often involve strike certification requirements for early 1990s (Dolbeer and Eschenfelder more than one bird. Such multiple bird transport category airplanes. 2003).’’ strikes may result in structural damage List of Subjects in 14 CFR Part 25 in several areas, pilot disorientation, Airspeed Information engine failure and systems failures. Any Aircraft, Aircraft safety. In the U.S., § 91.117 prescribes a one of these effects can significantly Issued in Renton, Washington, on June 25, speed restriction of 250 knots indicated reduce the controllability of the 2015. airspeed below 10,000 feet mean sea airplane. Sections 25.571 and 25.631 Jeffrey E. Duven, level. The 250 knot speed restriction is assume a single bird strike, rather than Manager, Transport Airplane Directorate, also in place in Mexico and Canada, and multiple bird strikes. The FAA believes Aircraft Certification Service. in many areas around the world, but not that this single bird strike approach is [FR Doc. 2015–17404 Filed 7–17–15; 8:45 am] everywhere. Where this speed an adequate approach for airframe BILLING CODE 4910–13–P restriction is in place, it provides a structure as long as the single bird strike significant safety benefit with respect to criteria are robust. By showing the bird strikes. structure capable of withstanding a DEPARTMENT OF TRANSPORTATION While deviations to this speed significant bird strike in any one area, restriction are allowed, and the a bird strike to that area should not Federal Aviation Administration requirement is not global, it does compound the hazard from strikes in indicate that limiting airspeed below other areas. 14 CFR Part 39 10,000 feet is operationally feasible for 5. Limiting airspeed below 10,000 feet transport category airplanes. Indeed, to is operationally feasible for transport meet current bird strike criteria, some [Docket No. FAA–2015–2462; Directorate category airplanes. Bird strike data Identifier 2014–NM–224–AD] manufacturers specify relatively low indicate numerous damaging bird VMO and VC airspeeds up to 8000 feet, strikes have occurred above 8000 feet, that increase above that altitude. These but above 10,000 feet, bird strikes are RIN 2120–AA64 speed ‘‘cutbacks’’ at lower altitudes are rare. Therefore, expanding the envelope Airworthiness Directives; The Boeing beneficial for three reasons: (1) They above 8000 feet, but limiting it at 10,000 Company Airplanes increase safety by reducing the energy of feet, may be warranted. any bird strike that occurs below 8000 6. Establishing reduced V and V MO C AGENCY: Federal Aviation feet, (2) they apply to all airspace, not airspeeds at lower altitudes provides a Administration (FAA), DOT. just those areas covered by US operating significant safety benefit with respect to regulations, or those of other countries, bird strikes. ACTION: Notice of proposed rulemaking and (3) they reduce the bird strike (NPRM). Request for Comments speeds to which the airplane must be designed. The FAA invites interested persons to SUMMARY: We propose to adopt a new To encourage these speed cutbacks, comment on the need for, and the airworthiness directive (AD) for certain we believe establishing the bird strike possible scope of, changes to the bird The Boeing Company Model 737–100, speed criteria based on VMO rather than strike requirements for transport –200, –200C, –300, –400, –500 series VC may be warranted. While most category airplanes by submitting written airplanes. This proposed AD was structures rules are based on VC, data, views, or arguments as they may prompted by reports of cracked antenna allowing these very speed-dependent desire. We invite comments relating to support channels, skin cracking criteria to be based on VMO may make the technical or economic impact that underneath the number 2 very high the establishment of speed cutbacks might result from any considerations frequency (VHF) antenna, and cracking easier to achieve. discussed herein, as well as any in the frames attached to the internal alternative suggestions. In particular, we Summary of FAA Findings support structure. This proposed AD invite information, comments, and would require repetitive inspections to Our review of bird strike event data opinion on the following questions: determine the condition of the skin and and bird population data indicates the 1. Should the bird weight requirement the internal support structure, and following: be applied consistently across the follow-on actions including corrective 1. Bird strikes have occurred and will airplane? action as necessary. We are proposing continue to occur at energy levels that 2. Should the bird weight requirement this AD to detect and correct skin exceed the level provided by current be increased, to eight pounds or some cracking of the fuselage which could requirements. other value? result in separation of the number 2 2. Numerous bird strikes have 3. Should a ‘‘no-penetration’’ VHF antenna from the airplane and resulted in penetration into the flight requirement be applied to the entire rapid depressurization of the cabin. deck, mostly below the windshield, fuselage, not just the windshields? even at energy levels below current 4. Should the bird strike criteria be DATES: We must receive comments on requirements. Penetration of the cockpit expanded to 10,000 feet? this proposed AD by September 3, 2015.

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ADDRESSES: You may send comments, section. Include ‘‘Docket No. FAA– Difference Between This Proposed AD using the procedures found in 14 CFR 2015–2462; Directorate Identifier 2014– and the Service Information 11.43 and 11.45, by any of the following NM–224–AD’’ at the beginning of your Tables 7, 8, and 9 in paragraph 1.E., methods: comments. We specifically invite • ‘‘Compliance,’’ of Boeing Special Federal eRulemaking Portal: Go to comments on the overall regulatory, Attention Service Bulletin 737–53– http://www.regulations.gov. Follow the economic, environmental, and energy 1159, Revision 1, dated October 20, instructions for submitting comments. aspects of this proposed AD. We will 2014, specify post-modification and • Fax: 202–493–2251. consider all comments received by the • post-repair inspections, which may be Mail: U.S. Department of closing date and may amend this used in support of compliance with Transportation, Docket Operations, M– proposed AD because of those section 121.1109(c)(2) or 129.109(b)(2) 30, West Building Ground Floor, Room comments. of the Federal Aviation Regulations 14 We will post all comments we W12–140, 1200 New Jersey Avenue SE., CFR 121.1109(c)(2) or 129.109(b)(2)). receive, without change, to http:// Washington, DC 20590. However, this NPRM does not propose • www.regulations.gov, including any Hand Delivery: Deliver to Mail to require those post-modification and personal information you provide. We address above between 9 a.m. and 5 post-repair inspections. This difference will also post a report summarizing each p.m., Monday through Friday, except has been coordinated with Boeing. Federal holidays. substantive verbal contact we receive Boeing Special Attention Service For service information identified in about this proposed AD. Bulletin 737–53–1159, Revision 1, dated this proposed AD, contact Boeing Discussion October 20, 2014, specifies to contact Commercial Airplanes, Attention: Data We have received reports of cracked the manufacturer for instructions on & Services Management, P. O. Box 3707, how to repair certain conditions, but MC 2H–65, Seattle, WA 98124–2207; antenna support channels, skin cracking underneath the number 2 VHF antenna, this proposed AD would require telephone 206–544–5000, extension 1; repairing those conditions in one of the fax 206–766–5680; Internet https:// and cracking in the frames attached to the internal support structure. The following ways: www.myboeingfleet.com. You may view • In accordance with a method that this referenced service information at cracking is caused when the nose gear is let down, resulting in turbulent we approve; or the FAA, Transport Airplane • Using data that meet the Directorate, 1601 Lind Avenue SW., airflow around the antenna. The turbulent airflow causes vibration in the certification basis of the airplane, and Renton, WA. For information on the that have been approved by the Boeing availability of this material at the FAA, antenna, which results in the skin, as well as the internal support structure Commercial Airplanes Organization call 425–227–1221. It is also available Designation Authorization (ODA) whom on the Internet at http:// and frames, to crack due to fatigue. This condition, if not corrected, could result we have authorized to make those www.regulations.gov by searching for findings. and locating Docket No. FAA–2015– in separation of the antenna from the 2462. airplane and rapid depressurization of Explanation of ‘‘RC (Required for the cabin. Compliance)’’ Steps in Service Examining the AD Docket Related Service Information Under 1 Information You may examine the AD docket on CFR Part 51 The FAA worked in conjunction with the Internet at http:// industry, under the Airworthiness www.regulations.gov by searching for We reviewed Boeing Special Attention Service Bulletin 737–53– Directive Implementation Aviation and locating Docket No. FAA–2015– Rulemaking Committee (ARC), to 2462; or in person at the Docket 1159, Revision 1, dated October 20, 2014. The service information describes enhance the AD system. One Management Facility between 9 a.m. enhancement was a new process for and 5 p.m., Monday through Friday, procedures for repetitive inspections to determine the condition of the skin and annotating which steps in the service except Federal holidays. The AD docket information are required for compliance contains this proposed AD, the the internal support structure, and follow-on actions including corrective with an AD. Differentiating these steps regulatory evaluation, any comments from other tasks in the service received, and other information. The action as necessary. This service information is reasonably available information is expected to improve an street address for the Docket Office owner’s/operator’s understanding of (phone: 800–647–5527) is in the because the interested parties have access to it through their normal course crucial AD requirements and help ADDRESSES section. Comments will be provide consistent judgment in AD available in the AD docket shortly after of business or by the means identified in the ADDRESSES section of this NPRM. compliance. The steps identified as RC receipt. (required for compliance) in any service FOR FURTHER INFORMATION CONTACT: FAA’s Determination information identified previously have a Wayne Lockett, Aerospace Engineer, We are proposing this AD because we direct effect on detecting, preventing, Airframe Branch, ANM–120S, FAA, evaluated all the relevant information resolving, or eliminating an identified Seattle Aircraft Certification Office and determined the unsafe condition unsafe condition. (ACO), 1601 Lind Avenue SW., Renton, described previously is likely to exist or For service information that contains WA 98057–3356; phone: 425–917–6447; develop in other products of the same steps that are labeled as Required for fax: 425–917–6590; email: type design. Compliance (RC), the following [email protected]. provisions apply: (1) The steps labeled SUPPLEMENTARY INFORMATION: Proposed AD Requirements as RC, including substeps under an RC This proposed AD would require step and any figures identified in an RC Comments Invited accomplishing the actions specified in step, must be done to comply with the We invite you to send any written the service information identified AD, and an alternative method of relevant data, views, or arguments about previously, except as discussed under compliance (AMOC) is required for any this proposal. Send your comments to ‘‘Differences Between this Proposed AD deviations to RC steps, including an address listed under the ADDRESSES and the Service Information.’’ substeps and identified figures; and (2)

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steps not labeled as RC may be deviated AMOC, provided the RC steps, Costs of Compliance from using accepted methods in including substeps and identified We estimate that this proposed AD accordance with the operator’s figures, can still be done as specified, affects 609 airplanes of U.S. registry. maintenance or inspection program and the airplane can be put back in an We estimate the following costs to without obtaining approval of an airworthy condition. comply with this proposed AD:

ESTIMATED COSTS

Action Labor cost Parts cost Cost per product Cost on U.S. operators

Inspections .... 33 work-hours × $85 per hour = $2,805 per inspec- $0 $2,805 per inspection $1,708,245 per inspection tion cycle. cycle. cycle.

We estimate the following costs to do results of the proposed inspection. We of aircraft that might need these repairs/ any necessary [repairs/modifications] have no way of determining the number modifications. that would be required based on the

ON-CONDITION COSTS

Action Labor cost Parts cost Cost per product

Repair and Preventive Modification ... 63 work-hours × $85 per hour = $5,355 ...... $10,432 Up to $15,787.

According to the manufacturer, some responsibilities among the various (a) Comments Due Date of the costs of this proposed AD may be levels of government. We must receive comments by September covered under warranty, thereby For the reasons discussed above, I 3, 2015. reducing the cost impact on affected certify this proposed regulation: (b) Affected ADs individuals. We do not control warranty (1) Is not a ‘‘significant regulatory coverage for affected individuals. As a action’’ under Executive Order 12866, None. result, we have included all costs in our (2) Is not a ‘‘significant rule’’ under (c) Applicability cost estimate. the DOT Regulatory Policies and This AD applies to The Boeing Company Authority for this Rulemaking Procedures (44 FR 11034, February 26, Model 737–100, –200, –200C, –300, –400, 1979), and –500 series airplanes, certificated in any Title 49 of the United States Code (3) Will not affect intrastate aviation category, as identified in Boeing Special specifies the FAA’s authority to issue in Alaska, and Attention Service Bulletin 737–53–1159, rules on aviation safety. Subtitle I, (4) Will not have a significant Revision 1, dated October 20, 2014. section 106, describes the authority of economic impact, positive or negative, (d) Subject the FAA Administrator. Subtitle VII: on a substantial number of small entities Aviation Programs, describes in more under the criteria of the Regulatory Air Transport Association (ATA) of detail the scope of the Agency’s Flexibility Act. America Code 53, Fuselage. authority. (e) Unsafe Condition We are issuing this rulemaking under List of Subjects in 14 CFR Part 39 This AD was prompted by reports of the authority described in Subtitle VII, Air transportation, Aircraft, Aviation cracked antenna support channels, skin Part A, Subpart III, Section 44701: safety, Incorporation by reference, cracking underneath the number 2 VHF ‘‘General requirements.’’ Under that Safety. antenna, and cracking in the frames attached section, Congress charges the FAA with The Proposed Amendment to the internal support structure. We are promoting safe flight of civil aircraft in issuing this AD to detect and correct skin air commerce by prescribing regulations Accordingly, under the authority cracking of the fuselage that could result in for practices, methods, and procedures delegated to me by the Administrator, separation of the antenna from the airplane the Administrator finds necessary for the FAA proposes to amend 14 CFR part and rapid depressurization of the cabin. safety in air commerce. This regulation 39 as follows: is within the scope of that authority (f) Compliance because it addresses an unsafe condition PART 39—AIRWORTHINESS Comply with this AD within the that is likely to exist or develop on DIRECTIVES compliance times specified, unless already products identified in this rulemaking done. ■ 1. The authority citation for part 39 action. (g) Inspection and Follow-on Actions: continues to read as follows: Regulatory Findings Group 1 Authority: 49 U.S.C. 106(g), 40113, 44701. For airplanes identified as Group 1 in We determined that this proposed AD § 39.13 [Amended] Boeing Special Attention Service Bulletin would not have federalism implications 737–53–1159, Revision 1, dated October 20, ■ under Executive Order 13132. This 2. The FAA amends § 39.13 by adding 2014: Within 120 days after the effective date proposed AD would not have a the following new airworthiness of this AD, inspect for cracking at the number substantial direct effect on the States, on directive (AD): 2 VHF antenna location, and do all the relationship between the national The Boeing Company: Docket No. FAA– applicable follow-on actions, using a method Government and the States, or on the 2015–2462; Directorate Identifier 2014 approved in accordance with the procedures distribution of power and NM–224–AD. specified in paragraph (m) of this AD.

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(h) Inspection and Follow-on Actions: (1) If any cracking is found, before further for appropriate action, and specifies that Groups 2 through 6, Configurations 1 flight, repair using a method approved in action as ‘‘RC’’ (Required for Compliance): through 3 accordance with the procedures specified in Before further flight, repair the cracking For airplanes identified as Groups 2 paragraph (m) of this AD. using a method approved in accordance with through 6, configurations 1 through 3 in (2) If no cracking is found, repeat the the procedures specified in paragraph (m) of Boeing Special Attention Service Bulletin inspections at the time specified in table 10 this AD. 737–53–1159, Revision 1, dated October 20, of paragraph 1.E., ‘‘Compliance,’’ of Boeing SB 737–53–1159, Revision 1, dated October (m) Alternative Methods of Compliance 2014: Within 1,250 flight cycles after the (AMOCs) effective date of this AD, do an external 20, 2014. (1) The Manager, Los Angeles Aircraft detailed inspection for cracking of the (j) Post Repair/Post Modification Inspections fuselage skin, as applicable, and do all Certification Office (ACO), FAA, has the For airplanes identified as Group 2, corrective actions, in accordance with Part 1 authority to approve AMOCs for this AD, if Configuration 1, and Groups 3 through 6, of the Accomplishment Instructions of requested using the procedures found in 14 Configurations 1 through 3, in Boeing Special Boeing Special Attention Service Bulletin CFR 39.19. In accordance with 14 CFR 39.19, Attention Service Bulletin 737–53–1159, 737–53–1159, Revision 1, dated October 20, send your request to your principal inspector Revision 1, dated October 20, 2014: The post- 2014. Thereafter, at the applicable time or local Flight Standards District Office, as repair/post-modification inspections specified in paragraph 1.E., ‘‘Compliance,’’ of appropriate. If sending information directly specified in tables 7 through 9 of paragraph Boeing Special Attention Service Bulletin to the manager of the ACO, send it to the 1.E., ‘‘Compliance’’ of Boeing Special 737–53–1159, Revision 1, dated October 20, attention of the person identified in Attention Service Bulletin 737–53–1159, 2014, except as required by paragraph (l)(1) paragraph (n)(2) of this AD. Revision 1, dated October 20, 2014, are not of this AD: Do all applicable actions specified (2) Before using any approved AMOC, required by this AD. in paragraphs (h)(1) through (h)(4) of this AD. notify your appropriate principal inspector, (1) Repeat the Part 1 inspection specified Note 1 to paragraph (j) of this AD: The or lacking a principal inspector, the manager in paragraph (h) of this AD until the post-repair/post-modification inspections of the local flight standards district office/ accomplishment of paragraphs (k)(1) and specified in tables 7 through 9 of paragraph certificate holding district office. (k)(2) of this AD, as applicable. 1.E., ‘‘Compliance’’ of Boeing Special (3) An AMOC that provides an acceptable (2) Inspect for cracking at the number 2 Attention Service Bulletin 737–53–1159, level of safety may be used for any repair VHF antenna location using internal and Revision 1, dated October 20, 2014, may be required by this AD if it is approved by external detailed inspections, internal and used in support of compliance with section Boeing Commercial Airplanes Organization external high frequency eddy current (HFEC) 121.1109(c)(2) or 129.109(b)(2) for the Designation Authorization (ODA) that has inspections, and an HFEC open-hole Federal Aviation Regulations (14 CFR been authorized by the Manager, Los Angeles inspection, in accordance with Part 2 of the 121.1109(c)(2) or 14 CFR 129.109(b)(2)). ACO, to make those findings. For a repair Accomplishment Instructions of Boeing method to be approved, the repair must meet (k) Terminating Action Provisions Special Attention Service Bulletin 737–53– the certification basis of the airplane, and the 1159, Revision 1, dated October 20, 2014. The following describes terminating action approval must specifically refer to this AD. Repeat the inspections until the for the airplane groups and configurations, as (4) For service information that contains accomplishment of paragraphs (k)(1) and identified in Boeing Special Attention steps that are labeled as Required for (k)(2) of this AD, as applicable. Service Bulletin 737–53–1159, Revision 1, Compliance (RC), the provisions of (3) Repair any crack found, in accordance dated October 20, 2014. paragraphs (m)(4)(i) and (m)(4)(ii) apply. with Part 3 of the Accomplishment (1) For airplanes in Group 2, Configuration (i) The steps labeled as RC, including Instructions of Boeing Special Attention 2; and Groups 3 through 6, Configuration 2: substeps under an RC step and any figures Service Bulletin 737–53–1159, Revision 1, Accomplishment of the inspections specified identified in an RC step, must be done to dated October 20, 2014, except as required by in paragraph (h)(2) of this AD terminates the comply with the AD. An AMOC is required paragraph (l)(2) of this AD. repetitive inspection requirements of for any deviations to RC steps, including (4) Do a preventive modification, in paragraph (h)(1) of this AD. substeps and identified figures. accordance with Part 4 of the (2) For airplanes in Group 2, Configuration (ii) Steps not labeled as RC may be Accomplishment Instructions of Boeing 1, and Groups 3 through 6, Configuration 1, deviated from using accepted methods in Special Attention Service Bulletin 737 53 2, and 3: Accomplishment of the repair accordance with the operator’s maintenance 1159, Revision 1, dated October 20, 2014, specified in paragraph (h)(3) of this AD or inspection program without obtaining except as specified in paragraph (l)(2) of this terminates the repetitive inspections approval of an AMOC, provided the RC steps, AD. The accomplishment of this preventive specified in paragraph (h)(1) and (h)(2) of this including substeps and identified figures, can modification terminates the inspections AD. still be done as specified, and the airplane required by paragraphs (g), (g)(1), and (h)(2) (3) For airplanes in Group 2, Configuration can be put back in an airworthy condition. of this AD. 1; and Groups 3 through 6, Configurations 1 and 3: Accomplishment of the preventive (n) Related Information (i) Inspection and Follow-on Actions: modification specified in paragraph (h)(4) of (1) For more information about this AD, Groups 3 through 6, Configuration 4 this AD terminates the initial and repetitive contact Wayne Lockett, Aerospace Engineer, For airplanes identified as Groups 3 inspections specified in paragraphs (h), Airframe Branch, ANM–120S, FAA, Seattle through 6, Configuration 4, in Boeing Special (h)(1), and (h)(2) of this AD. Aircraft Certification Office (ACO), 1601 Lind Attention Service Bulletin 737–53–1159, Avenue SW., Renton, WA 98057–3356; Revision 1, dated October 20, 2014: At the (l) Exception to Service Bulletin phone: 425–917–6447; fax: 425–917–6590; applicable time specified in table 10 of Specifications email: [email protected]. paragraph 1.E., ‘‘Compliance,’’ of Boeing (1) Where Boeing Special Attention Service (2) For information on AMOCs, contact Special Attention Service Bulletin 737–53– Bulletin 737–53–1159, Revision 1, dated Nenita Odesa, Aerospace Engineer, Airframe 1159, Revision 1, dated October 20, 2014; Do October 20, 2014 compliance is ‘‘after the Branch, ANM–120L, FAA, Los Angeles an external detailed inspection for cracking Revision 1 date of this service bulletin,’’ this Aircraft Certification Office (ACO), 3960 at the outer row of fasteners common to the AD requires compliance within the specified Paramount Boulevard, Lakewood, CA 90712– internal repair doubler, and do an internal compliance time after the effective date of 4137; phone: 562–627–5210; fax: 562–627– general visual inspection for cracking on the this AD. Do the inspection, in accordance 5234; email: [email protected]. modified internal support structure of the with the Accomplishment Instructions of the (3) For service information identified in number 2 VHF antenna, skin, and Boeing Special Attention Service Bulletin this AD, contact Boeing Commercial surrounding stringers, channel, and frames, 737–53–1159, Revision 1, dated October 20, Airplanes, Attention: Data & Services in accordance with the Accomplishment 2014. Management, P. O. Box 3707, MC 2H–65, Instructions of Boeing Special Attention (2) Where Boeing Special Attention Service Seattle, WA 98124–2207; telephone 206– Service Bulletin 737–53–1159, Revision 1, Bulletin 737–53–1159, Revision 1, dated 544–5000, extension 1; fax 206–766–5680; dated October 20, 2014. October 20, 2014, specifies to contact Boeing Internet https://www.myboeingfleet.com. You

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may view this referenced service information on the ground floor of the building at docket numbers and be submitted in at the FAA, Transport Airplane Directorate, the above address. triplicate to the address listed above. 1601 Lind Avenue SW., Renton, WA. For FAA Order 7400.9Y, Airspace Commenters wishing the FAA to information on the availability of this Designations and Reporting Points, and acknowledge receipt of their comments material at the FAA, call 425–227–1221. subsequent amendments can be viewed on this notice must submit with those Issued in Renton, Washington, on July 10, online at http://www.faa.gov/air_traffic/ comments a self-addressed, stamped 2015. publications/. The Order is also postcard on which the following Michael Kaszycki, available for inspection at the National statement is made: ‘‘Comments to Acting Manager, Transport Airplane Archives and Records Administration Docket No. FAA–2015–1137; Airspace Directorate, Aircraft Certification Service. (NARA). For information on the Docket No. 15–ANM–4.’’ The postcard [FR Doc. 2015–17688 Filed 7–17–15; 8:45 am] availability of this material at NARA, will be date/time stamped and returned BILLING CODE 4910–13–P call 202–741–6030, or go to http:// to the commenter. _ www.archives.gov/federal register/ Availability of NPRMs code_of_federal-regulations/ibr_ DEPARTMENT OF TRANSPORTATION locations.html. An electronic copy of this document FAA Order 7400.9, Airspace may be downloaded through the Federal Aviation Administration Designations and Reporting Points, is Internet at http://www.regulations.gov. published yearly and effective on Recently published rulemaking 14 CFR Part 71 September 15. For further information, documents can also be accessed through [Docket No. FAA–2015–1137; Airspace you can contact the Airspace Policy and the FAA’s Web page at http:// _ _ Docket No. 15–ANM–4] Regulations Group, Federal Aviation www.faa.gov/airports airtraffic/air _ Administration, 800 Independence traffic/publications/airspace Proposed Amendment of Class E Avenue, SW., Washington, DC, 20591; amendments/. Airspace; Portland, OR telephone: 202–267–8783. You may review the public docket containing the proposal, any comments AGENCY: Federal Aviation FOR FURTHER INFORMATION CONTACT: received, and any final disposition in Administration (FAA), DOT. Steve Haga, Federal Aviation person in the Dockets Office (see the ACTION: Administration, Operations Support Notice of proposed rulemaking ADDRESSES section for the address and Group, Western Service Center, 1601 (NPRM). phone number) between 9:00 a.m. and Lind Avenue SW., Renton, WA 98057; 5:00 p.m., Monday through Friday, SUMMARY: This action proposes to telephone (425) 203–4563. modify Class E surface area airspace except federal holidays. An informal SUPPLEMENTARY INFORMATION: designated as an extension to the Class docket may also be examined during C airspace, and Class E airspace Authority for This Rulemaking normal business hours at the Northwest extending upward from 700 feet above Mountain Regional Office of the Federal The FAA’s authority to issue rules Aviation Administration, Air Traffic the surface at Portland International regarding aviation safety is found in Airport, Portland, OR. After reviewing Organization, Western Service Center, Title 49 of the United States Code. Operations Support Group, 1601 Lind the airspace, the FAA found the Subtitle I, Section 106 describes the Portland VHF omnidirectional radio Avenue SW., Renton, WA 98057. authority of the FAA Administrator. Persons interested in being placed on range/distance measuring equipment Subtitle VII, Aviation Programs, (VOR/DME) and Laker non-directional a mailing list for future NPRMs should describes in more detail the scope of the contact the FAA’s Office of Rulemaking, beacon (NDB) have been agency’s authority. This rulemaking is decommissioned, thereby necessitating (202) 267–9677, for a copy of Advisory promulgated under the authority Circular No. 11–2A, Notice of Proposed airspace redesign for the safety and described in Subtitle VII, Part, A, management of Instrument Flight Rules Rulemaking Distribution System, which Subpart I, Section 40103. Under that describes the application procedure. (IFR) operations at the airport. This section, the FAA is charged with proposal also would correct the prescribing regulations to assign the use Availability and Summary of geographic coordinates of the airport. of airspace necessary to ensure the Documents Proposed for Incorporation DATES: Comments must be received on safety of aircraft and the efficient use of by Reference or before September 3, 2015. airspace. This regulation is within the This document proposes to amend ADDRESSES: Send comments on this scope of that authority as it would FAA Order 7400.9Y, Airspace proposal to the U.S. Department of amend Class E airspace at Portland Designations and Reporting Points, Transportation, Docket Operations, M– International Airport, Portland, OR. dated August 6, 2014, and effective 30, West Building Ground Floor, Room Comments Invited September 15, 2014. FAA Order W12–140, 1200 New Jersey Avenue SE., 7400.9Y is publicly available as listed in Washington, DC 20590; telephone (202) Interested parties are invited to the ADDRESSES section of this proposed 366–9826. You must identify FAA participate in this proposed rulemaking rule. FAA Order 7400.9Y lists Class A, Docket No. FAA–2015–1137; Airspace by submitting such written data, views, B, C, D, and E airspace areas, air traffic Docket No. 15–ANM–4, at the beginning or arguments, as they may desire. service routes, and reporting points. of your comments. You may also submit Comments that provide the factual basis comments through the Internet at supporting the views and suggestions The Proposal http://www.regulations.gov. You may presented are particularly helpful in The FAA is proposing an amendment review the public docket containing the developing reasoned regulatory to Title 14 Code of Federal Regulations proposal, any comments received, and decisions on the proposal. Comments (14 CFR) Part 71 by modifying Class E any final disposition in person in the are specifically invited on the overall airspace designated as an extension to Dockets Office between 9:00 a.m. and regulatory, aeronautical, economic, Class C airspace, and Class E airspace 5:00 p.m., Monday through Friday, environmental, and energy-related extending upward from 700 feet above except Federal holidays. The Docket aspects of the proposal. the surface at Portland International Office (telephone 1–800–647–5527), is Communications should identify both Airport, Portland, OR. A review of the

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airspace revealed modification The Proposed Amendment 120°29′40″ W.; to lat. 45°42′49″ N., long. necessary due to the decommissioned 121°06′03″ W.; to lat. 44°15′10″ N., long. Accordingly, pursuant to the 121°18′13″ W.; to lat. 44°29′59″ N., long. Portland VOR/DME and Laker NDB authority delegated to me, the Federal ° ′ ″ ° ′ ″ navigation aids. Also, the geographic 123 17 38 W.; to lat. 44 29 59 N., long. Aviation Administration proposes to 124°08′036″ W. to a point 2.7 miles offshore; coordinates of the airport would be amend 14 CFR part 71 as follows: thence along a line 2.7 miles offshore to the amended to coincide with the FAA’s point of beginning. aeronautical database. PART 71—DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR Issued in Seattle, Washington, on July 7, Class E airspace designated as an 2015. extension to Class C airspace would be TRAFFIC SERVICE ROUTES; AND REPORTING POINTS Christopher Ramirez, modified to an area 4.7 miles west and Manager, Operations Support Group, Western 4 miles east of the 044° bearing from ■ 1. The authority citation for 14 CFR Service Center. Portland International Airport extending part 71 continues to read as follows: [FR Doc. 2015–17502 Filed 7–17–15; 8:45 am] to 18 miles northeast of the airport. The BILLING CODE 4910–13–P lateral boundary for Class E airspace Authority: 49 U.S.C. 106(f), 106(g); 40103, extending upward from 700 feet above 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Comp., p. 389. the surface would be defined utilizing DEPARTMENT OF TRANSPORTATION latitudinal and longitudinal reference § 71.1 [Amended] points instead of navigation aids. This ■ 2. The incorporation by reference in Federal Aviation Administration would not change the lateral boundaries 14 CFR 71.1 of FAA Order 7400.9Y, or operating requirements of the Airspace Designations and Reporting 14 CFR Part 73 airspace. Points, dated August 6, 2014, and [Docket No. FAA–2015–2193; Airspace Class E airspace designations are effective September 15, 2014, is Docket No. 15–AWP–8] published in paragraph 6003 and 6005, amended as follows: RIN 2120–AA66 respectively, of FAA Order 7400.9Y, Paragraph 6003 Class E Airspace Areas dated August 6, 2014, and effective Designated as an Extension Proposed Establishment of Restricted September 15, 2014, which is * * * * * Area R–2507W; Chocolate Mountains, incorporated by reference in 14 CFR CA 71.1. The Class E airspace designations ANM OR E3 Portland, OR [Modified] listed in this document will be Portland International Airport, OR AGENCY: Federal Aviation published subsequently in the Order. (Lat. 45°35′19″ N., long. 122°35′49″ W.) Administration (FAA), DOT. Regulatory Notices and Analyses That airspace extending upward from the ACTION: Notice of proposed rulemaking surface bounded by a line beginning at lat. (NPRM). 45°40′10″ N., long. 122°37′24″ W.; to lat. The FAA has determined this ° ′ ″ ° ′ ″ 45 41 14 N., long. 122 37 21 W.; to lat. SUMMARY: proposed regulation only involves an ° ′ ″ ° ′ ″ This action proposes to 45 51 45 N., long. 122 22 16 W.; to lat. establish restricted area R–2507W, established body of technical 45°45′40″ N., long. 122°13′32″ W.; to lat. regulations for which frequent and 45°35′11″ N., long. 122°28′45″ W.; thence Chocolate Mountains, CA, to support routine amendments are necessary to counter-clockwise along the 5-mile radius of training activities that involve the use of keep them operationally current. Portland International Airport to the point of advanced weapons systems. Proposed Therefore, this proposed regulation; (1) beginning. R–2507W is needed by the United States Marine Corps (USMC) to enhance is not a ‘‘significant regulatory action’’ Paragraph 6005 Class E Airspace Areas under Executive Order 12866; (2) is not Extending Upward From 700 feet or More training and safety requirements in a ‘‘significant rule’’ under DOT Above the Surface of the Earth order to maintain, train, and equip Regulatory Policies and Procedures (44 * * * * * combat-ready military forces. FR 11034; February 26, 1979); and (3) DATES: Comments must be received on does not warrant preparation of a ANM OR E5 Portland, OR [Modified] or before September 3, 2015. regulatory evaluation as the anticipated Portland International Airport, OR ADDRESSES: Send comments on this (Lat. 45°35′19″ N., long. 22°35′49″ W.) impact is so minimal. Since this is a proposal to the U.S. Department of routine matter that will only affect air McMinnville, McMinnville Municipal Airport, OR Transportation, Docket Operations, M– traffic procedures and air navigation, it (Lat. 45°11′40″ N., long. 123°08′10″ W.) 30, 1200 New Jersey Avenue SE., West is certified this proposed rule, when That airspace extending upward from 700 Building Ground Floor, Room W12–140, promulgated, would not have a feet above the surface bounded by a line Washington, DC 20590–0001; telephone: significant economic impact on a beginning at lat. 45°59′59″ N., long. (202) 366–9826. You must identify FAA substantial number of small entities 123°30′04″ W.; to lat. 46°00′00″ N., long. Docket No. FAA–2015–2193 and under the criteria of the Regulatory 122°13′00″ W.; thence via an 8.5-mile radius Airspace Docket No. 15–AWP–8, at the Flexibility Act. centered at lat. 45°55′07″ N., long. 122°03′02″ ° ′ ″ beginning of your comments. You may W. clockwise to lat. 45 46 39 N., long. also submit comments through the Environmental Review 122°04′00″ W.; thence via a line south to lat. 45°09′59″ N., long. 122°04′00″ W.; thence to Internet at www.regulations.gov. This proposal will be subject to an lat. 45°09′59″ N., long. 123°02′23″ W.; and Comments on environmental and land environmental analysis in accordance within a 4.3-mile radius of McMinnville use aspects to should be directed to: with FAA Order 1050.1E, Municipal Airport; and within 2 miles each Kelly Finn, Naval Facilities Engineering ‘‘Environmental Impacts: Policies and side of the 215° bearing from McMinnville Command Southwest, 1220 Pacific Procedures’’ prior to any FAA final Municipal Airport to lat. 45°09′59″ N., long. Highway, Building 1, Room 323, San 123°13′21″ W.; to lat. 45°09′59″ N., long. regulatory action. ° ′ ″ Diego, CA 92132; telephone: (619) 532– 123 30 04 W.; thence to the point of 4452. List of Subjects in 14 CFR Part 71 beginning; that airspace extending upward from 1,200 feet above the surface bounded by FOR FURTHER INFORMATION CONTACT: Airspace, Incorporation by reference, a line beginning at lat. 46°30′29″ N., long. Jason Stahl, Airspace Policy and Navigation (air). 124°06′51″ W.; to lat. 46°30′29″ N., long. Regulations Group, Office of Airspace

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Services, Federal Aviation existing R–2507N and the adjacent R– Availability of NPRMs Administration, 800 Independence 2507S restricted areas in order to meet An electronic copy of this document Avenue SW., Washington, DC 20591; the expanded training requirements. may be downloaded through the telephone: (202) 267–8783. The existing restricted areas, which are Internet at www.regulations.gov. SUPPLEMENTARY INFORMATION: primarily used for aerial ordnance You may review the public docket Authority for This Rulemaking delivery and air strikes, are containing the proposal, any comments incompatible with required co-use received and any final disposition in The FAA’s authority to issue rules ground training activities. Alternate person at the Dockets Office (see regarding aviation safety is found in location suitability studies were ADDRESSES section for address and Title 49 of the United States Code. conducted to examine alternatives for phone number) between 9:00 a.m. and Subtitle I, Section 106 describes the the ground training activities. The 5:00 p.m., Monday through Friday, authority of the FAA Administrator. except Federal holidays. An informal Subtitle VII, Aviation Programs, studies determined that the training capabilities offered in the proposed R– docket may also be examined during describes in more detail the scope of the normal business hours at the office of agency’s authority. 2507W are unique and cannot be replicated elsewhere without significant the Operations Support Group, Western This rulemaking is promulgated Service Center, Federal Aviation cost, time, and undue degradation or under the authority described in Administration, 1601 Lind Ave. SW., Subtitle VII, Part A, Subpart I, Section failure to meet USMC requirements. Renton, WA 98057. 40103. Under that section, the FAA is Comments Invited Persons interested in being placed on charged with prescribing regulations to a mailing list for future NPRMs should assign the use of the airspace necessary Interested parties are invited to contact the FAA’s Office of Rulemaking, to ensure the safety of aircraft and the participate in this proposed rulemaking (202) 267–9677, for a copy of Advisory efficient use of airspace. This regulation by submitting such written data, views, Circular No. 11–2A, Notice of Proposed is within the scope of that authority as or arguments as they may desire. Rulemaking Distribution System, which it would modify the restricted area Comments that provide the factual basis describes the application procedure. airspace at Chocolate Mountains, CA, to supporting the views and suggestions enhance aviation safety and The Proposal presented are particularly helpful in accommodate essential USMC training developing reasoned regulatory This proposal would establish new requirements. restricted area. R–2507W to decisions on the proposal. Comments accommodate live direct and indirect Background are specifically invited on the overall surface to surface fires associated with The Chocolate Mountain Aerial regulatory, aeronautical, economic, established live fire ranges and Gunnery Range (CMAGR), located in environmental, and energy-related maneuver areas supporting Naval Imperial and Riverside Counties, CA is aspects of the proposal. Special Warfare and Marine Corps primarily used for live-fire aviation and Communications should identify both ground unit training. This proposed ground warfare training conducted by docket numbers (FAA Docket No. FAA– restricted area is required to effectively USMC and Navy forces. Marine aviation 2015–2193 and Airspace Docket No. 15– de-conflict Department of Defense and plays a crucial role in the ability of AWP–8) and be submitted in triplicate civilian air traffic from hazards Marine Air-Ground Task Forces to the Docket Management System (see associated with live fire training. (MAGTF) to conduct maneuver warfare. ADDRESSES section for address and Specific aviation activities and The ultimate goal of Marine aviation is phone number). You may also submit maximum altitudes within the R– to attain the highest possible combat 2507W would include both live fire and readiness to support expeditionary comments through the Internet at www.regulations.gov. non-live fire aviation training activities maneuver warfare while preserving and such as Basic Ordnance Delivery, Close conserving Marine forces and Commenters wishing the FAA to Air Support, Air-to-Air Gunnery, Laser equipment. Embedded within combat acknowledge receipt of their comments Ranging and Designating, and Air readiness is the requirement that Marine on this action must submit with those Strikes. As part of the Marine Corps’ aviation units maintain the ability to comments a self-addressed, stamped training in R–2507, the Marine Corps rapidly, effectively, and efficiently postcard on which the following Air Command and Control organization deploy a combat-capable aircrew and statement is made: ‘‘Comments to FAA will develop a battle space management aircraft on short notice, and maintain Docket No. FAA–2015–2193 and plan. This plan will establish ground the ability to quickly and effectively Airspace Docket No. 15–AWP–8.’’ The fire support and airspace coordination plan for crises and/or contingency postcard will be date/time stamped and measures in a way that integrates operations. R–2507W would allow returned to the commenter. ground and air operations in planning Marine aviation to attain and maintain All communications received on or and execution within the MAGTF. this capability. before the specified closing date for Supersonic flight will not be conducted Current procedures require the as part of the above aviation training comments will be considered before periodic renewal of the CFAs over this activities. area. Because nonparticipating aircraft taking action on the proposed rule. The Surface-to-surface and surface-to-air may transit the CFAs without limitation proposal contained in this action may activities conducted within the R– and without warning, safety of flight be changed in light of comments 2507W would include live fire from concerns often result in lengthy training received. All comments submitted will various small arms, machine guns, anti- interruptions and failure to meet be available for examination in the tank weapons, mortars, and hand training requirements. A higher-level public docket both before and after the grenades. Direct fire weapons will be demand for greater throughput of both closing date for comments. A report used in this area 6–24 hours per day, no ground and aviation training in order to summarizing each substantive public less than 300 days per year. A minimum support real world operations will likely contact with FAA personnel concerned of 40 percent use of the planned live fire increase the frequency of these with this rulemaking will be filed in the ranges will occur during hours of incidents. The USMC considered the docket. darkness (from 2200–0700).

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Expansion of the current restricted 115°23′17″ W.; to latitude 33°13′58″ N., DATES: Written comments should be area complex supports an increase in longitude 115°24′26″ W.; to latitude received on or before August 19, 2015. both Marine Corps and Naval aviation 33°14′22″ N., longitude 115°25′29″ W.; ADDRESSES: Comments may be mailed to and ground training requirements. In to latitude 33°15′40″ N., longitude Ms. Mary Stanton, Chief, Air Grants addition, the expansion would allow 115°27′36″ W.; to latitude 33°17′28″ N., Section (6PD–S), Environmental critically required co-use of R–2507W in longitude 115°29′42″ W.; to latitude Protection Agency, 1445 Ross Avenue, order to meet those increased training 33°19′17″ N., longitude 115°32′13″ W.; Suite 1200, Dallas, Texas 75202–2733. requirements. to latitude 33°21′11″ N., longitude Comments may also be submitted 115°34′39″ W.; to latitude 33°22′58″ N., Regulatory Notices and Analyses electronically or through hand delivery/ longitude 115°38′19″ W.; to latitude courier by following the detailed The FAA has determined that this 33°27′26″ N., longitude 115°43′30″ W.; instructions in the ADDRESSES section of proposed regulation only involves an to latitude 33°29′25″ N., longitude the direct final rule located in the rules established body of technical 115°46′08″ W.; to latitude 33°31′09″ N., section of this Federal Register. ° ′ ″ regulations for which frequent and longitude 115 41 12 W.; to latitude FOR FURTHER INFORMATION CONTACT: ° ′ ″ ° ′ ″ routine amendments are necessary to 33 32 50 N., longitude 115 37 37 W.; Tracie Donaldson, (214) 665–6633, ° ′ ″ keep them operationally current. to latitude 33 32 40 N., longitude [email protected]. Therefore, this proposed regulation: (1) 115°33′53″ W.; to latitude 33°28′30″ N., SUPPLEMENTARY INFORMATION: In the Is not a ‘‘significant regulatory action’’ ° ′ ″ longitude 115 42 13 W.; to latitude final rules section of this Federal under Executive Order 12866; (2) is not ° ′ ″ ° ′ ″ 33 23 40 N., longitude 115 33 23 W.; Register, EPA is approving the State’s a ‘‘significant rule’’ under Department of ° ′ ″ to latitude 33 21 30 N., longitude SIP submittal as a direct rule without Transportation (DOT) Regulatory ° ′ ″ 115 32 58 W.; to the point of beginning. prior proposal because the Agency Policies and Procedures (44 FR 11034; Designated altitudes. Surface to FL views this as a noncontroversial February 26, 1979); and (3) does not 230. submittal and anticipates no adverse warrant preparation of a regulatory Time of designation. Continuous. comments. A detailed rationale for the evaluation as the anticipated impact is Controlling agency. FAA, Los Angeles approval is set forth in the direct final so minimal. Since this is a routine Air Route Traffic Control Center rule. If no relevant adverse comments matter that will only affect air traffic (ARTCC). are received in response to this action procedures and air navigation, it is Using agency. USMC, Commanding no further activity is contemplated. If certified that this proposed rule, when Officer, Marine Corps Air Station EPA receives relevant adverse promulgated, will not have a significant (MCAS) Yuma, AZ. comments, the direct final rule will be economic impact on a substantial Issued in Washington, DC, on July 14, withdrawn and all public comments number of small entities under the 2015. received will be addressed in a criteria of the Regulatory Flexibility Act. Gary Norek, subsequent final rule based on this Environmental Review Manager, Airspace Policy and Regulations proposed rule. EPA will not institute a Group. This proposal will be subjected to an second comment period. Any parties environmental analysis in accordance [FR Doc. 2015–17702 Filed 7–17–15; 8:45 am] interested in commenting on this action with FAA Order 1050.1E, BILLING CODE 4910–13–P should do so at this time. ‘‘Environmental Impacts: Policies and For additional information, see the Procedures,″ prior to any FAA final direct final rule which is located in the regulatory action. ENVIRONMENTAL PROTECTION rules section of this Federal Register. AGENCY Dated: July 7, 2015. List of Subjects in 14 CFR Part 73 Ron Curry, 40 CFR Part 52 Airspace, Prohibited areas, Restricted Regional Administrator, Region 6. areas. [EPA–R06–OAR–2015–0027; FRL–9930–78– [FR Doc. 2015–17742 Filed 7–17–15; 8:45 am] The Proposed Amendment Region–6] BILLING CODE 6560–50–P In consideration of the foregoing, the Approval and Promulgation of Air Federal Aviation Administration Quality Implementation Plans; Texas; ENVIRONMENTAL PROTECTION proposes to amend 14 CFR part 73 as Low Reid Vapor Pressure Fuel AGENCY follows: Regulations 40 CFR Part 52 PART 73—SPECIAL USE AIRSPACE AGENCY: Environmental Protection Agency (EPA). [EPA–R04–OAR–2015–0133; FRL–9930–86– ■ Region 4] 1. The authority citation for part 73 ACTION: Proposed rule. continues to read as follows: Approval and Promulgation of Authority: 49 U.S.C. 106(f), 106(g); 40103, SUMMARY: The Environmental Protection Agency (EPA) is proposing to approve Implementation Plans; Florida; Combs 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, Oil Company Variance 1959–1963 Comp., p. 389. revisions to the Texas State Implementation Plan (SIP) related to AGENCY: Environmental Protection § 73.25 California (Amended) Low Reid Vapor Pressure (RVP) Fuel Agency (EPA). ■ 2. § 73.25 is amended as follows: Regulations that were submitted by the ACTION: Proposed rule. * * * * * State of Texas on January 5, 2015. The EPA evaluated the Texas SIP submittal SUMMARY: The Environmental Protection R–2507W West Chocolate Mountains, and determined these revisions are Agency (EPA) is proposing to approve a CA [New] consistent with the requirements of the revision to the State Implementation Boundaries. Beginning at latitude Clean Air Act (Act or CAA). The EPA Plan (SIP) submitted by the State of 33°14′00″ N., longitude 115°22′33″ W.; is approving this action under the Florida through the Department of to latitude 33°13′14″ N., longitude federal CAA. Environmental Protection (DEP) on July

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31, 2009. The revision grants a variance www.regulations.gov, your email The rule became effective on May 9, to the Combs Oil Company, located in address will be automatically captured 2007, and was submitted to EPA as a Naples, Florida. This source specific and included as part of the comment proposed SIP revision on May 31, 2007. revision relieves the Combs Oil that is placed in the public docket and EPA approved the SIP revision on June Company of the requirement to comply made available on the Internet. If you 1, 2009 (74 FR 26103). with the Florida rule governing submit an electronic comment, EPA On May 30, 2007, Combs Oil installation and operation of vapor recommends that you include your Company submitted a petition for collection and control systems on name and other contact information in variance from the requirements of Rule loading racks at bulk gasoline plants. the body of your comment and with any 62–296.418(2)(b)2, Florida EPA is proposing approval of Florida’s disk or CD–ROM you submit. If EPA Administrative Code (F.A.C.), for its July 31, 2009, SIP revision. cannot read your comment due to new bulk gasoline plant. The company DATES: Written comments must be technical difficulties and cannot contact operates an existing bulk gasoline plant received on or before August 19, 2015. you for clarification, EPA may not be in Naples, Florida. The new plant would replace the existing plant and be ADDRESSES: able to consider your comment. Submit your comments, constructed at a different site in the identified by Docket ID No. EPA–R04– Electronic files should avoid the use of special characters, any form of area. However, between July 2005 and OAR–2015–0133, by one of the January 2007, the company experienced following methods: encryption, and be free of any defects or viruses. For additional information substantial construction delays beyond 1. www.regulations.gov: Follow the its control due to the effects of on-line instructions for submitting about EPA’s public docket visit the EPA Docket Center homepage at http:// hurricanes, both in Florida and along comments. the upper Gulf Coast. The company 2. Email: [email protected]. www.epa.gov/epahome/dockets.htm. Docket: All documents in the experienced delays in obtaining steel for 3. Fax: (404) 562–9019. the office and loading/tank areas as well 4. Mail: ‘‘EPA–R04–OAR–2015– electronic docket are listed in the www.regulations.gov index. Although as the rationing of steel rebar and 0133,’’ Air Regulatory Management concrete supplies. Combs Oil Company Section (formerly Regulatory listed in the index, some information is not publicly available, i.e., CBI or other had invested $67,053 in equipment and Development Section), Air Planning and $40,235 in construction costs for the Implementation Branch, Air, Pesticides information whose disclosure is restricted by statute. Certain other support structure of the loading rack and Toxics Management Division, U.S. prior to the DEP’s initiation of rule 62– Environmental Protection Agency, material, such as copyrighted material, is not placed on the Internet and will be 296.418(2)(b)2, requiring a vapor Region 4, 61 Forsyth Street SW., collection and control system on the Atlanta, Georgia 30303–8960. publicly available only in hard copy form. Publicly available docket loading racks of new bulk gasoline 5. Hand Delivery or Courier: Lynorae plants. However, the company was Benjamin, Chief, Air Regulatory materials are available either electronically in www.regulations.gov or unable to complete construction and Management Section, Air Planning and relocation of its plant by August 1, 2007, Implementation Branch, Air, Pesticides in hard copy at the Air Regulatory Management Section, Air Planning and due to the aforementioned construction and Toxics Management Division, U.S. delays. Environmental Protection Agency, Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Under Section 120.542 of the Florida Region 4, 61 Forsyth Street SW., Statutes, the DEP may grant a variance Atlanta, Georgia 30303–8960. Such Environmental Protection Agency, Region 4, 61 Forsyth Street SW., when the person subject to a rule deliveries are only accepted during the demonstrates that the purpose of the Atlanta, Georgia 30303–8960. EPA Regional Office’s normal hours of underlying statute will be or has been requests that if at all possible, you operation. The Regional Office’s official achieved by other means, or when contact the person listed in the FOR hours of business are Monday through application of a rule would create a FURTHER INFORMATION CONTACT section to Friday, 8:30 a.m. to 4:30 p.m., excluding substantial hardship or violate schedule your inspection. The Regional Federal holidays. principles of fairness. The DEP Office’s official hours of business are Instructions: Direct your comments to determined that Combs Oil Company Monday through Friday, 8:30 a.m. to Docket ID No. EPA–R04–OAR–2015– had demonstrated that principles of 4:30 p.m., excluding Federal holidays. 0133. EPA’s policy is that all comments fairness would be violated because the received will be included in the public FOR FURTHER INFORMATION CONTACT: delays in building and relocating to the docket without change and may be Sean Lakeman, Air Regulatory new facility, related to hurricanes, were made available online at Management Section, Air Planning and beyond the control of the company. www.regulations.gov, including any Implementation Branch, Air, Pesticides Therefore, the DEP issued an Order personal information provided, unless and Toxics Management Division, U.S. Granting Variance to Combs Oil the comment includes information Environmental Protection Agency, Company on August 20, 2008, relieving claimed to be Confidential Business Region 4, 61 Forsyth Street SW., the company from the requirements of Information (CBI) or other information Atlanta, Georgia 30303–8960. The Rule 62–296.418(2)(b)2., F.A.C., for its whose disclosure is restricted by statute. telephone number is (404) 562–9043. proposed new facility. Do not submit through Mr. Lakeman can be reached via www.regulations.gov or email, electronic mail at lakeman.sean@ II. Analysis of State Submittal information that you consider to be CBI epa.gov. Section 110(l) of the CAA requires or otherwise protected. The SUPPLEMENTARY INFORMATION: that SIP revisions must not interfere www.regulations.gov Web site is an with any applicable requirement ‘‘anonymous access’’ system, which I. Background concerning attainment and reasonable means EPA will not know your identity The Florida Rule 62–296.418 requires further progress. Like the facility it is or contact information unless you bulk gasoline plants which began replacing, the new Combs Oil facility is provide it in the body of your comment. operation on or after August 1, 2007, to located in Collier County in Southwest If you send an email comment directly install and operate vapor collection and Florida. Collier County has never been to EPA without going through control systems on their loading racks. designated nonattainment for any air

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pollutant and, thus, is not subject to any electronically through safety risks subject to Executive Order reasonable further progress www.regulations.gov and/or in hard 13045 (62 FR 19885, April 23, 1997); requirements. Air quality monitoring is copy at the appropriate EPA office (see • is not a significant regulatory action currently available in the county for the ADDRESSES section of this preamble subject to Executive Order 13211 (66 FR ozone. A comparison of the Collier for more information). 28355, May 22, 2001); County data in relation to the National • is not subject to requirements of IV. Final Action Ambient Air Quality Standards for Section 12(d) of the National ozone is indicating that value is well EPA is proposing to approve a source Technology Transfer and Advancement within the compliance level. The ozone specific SIP revision submitted by the Act of 1995 (15 U.S.C. 272 note) because design value for 2011–2013 in Collier Florida DEP on July 31, 2009. The application of those requirements would County is 0.060 parts per million (ppm). revision grants a variance to the Combs be inconsistent with the CAA; and The proposed SIP revision involves Oil Company, located in Naples, • does not provide EPA with the emissions of volatile organic Florida. This source specific revision discretionary authority to address, as compounds (VOC), a precursor to ozone. relieves the Combs Oil Company of the appropriate, disproportionate human For fine particulate matter (PM2.5), requirement to comply with the Florida health or environmental effects, using County-level nitrogen oxide, volatile rule governing installation and practicable and legally permissible organic compound and ammonia operation of vapor collection and methods, under Executive Order 12898 emissions were not considered because control systems on loading racks at bulk (59 FR 7629, February 16, 1994). ambient PM2.5 concentrations in the gasoline plants. It should be noted that The SIP is not approved to apply on southeastern U.S. tend to be impacted approval of the variance for Combs Oil any Indian reservation land or in any most significantly by emissions of direct Company only relieves them from the other area where EPA or an Indian tribe PM2.5 emissions and SO2 emissions. As requirements of Rule 62–296.418(2)(b)2 has demonstrated that a tribe has a result of the time involved in the F.A.C., for its new bulk gasoline plant, jurisdiction. In those areas of Indian chemical and physical transformations it does not relieve them from any country, the rule does not have tribal of the precursor emissions, the primary requirements established in 40 CFR implications as specified by Executive impact of the source cannot be parts 60 and 63. Order 13175 (65 FR 67249, November 9, explicitly determined but can be 2000), nor will it impose substantial evaluated in terms of its addition to the IV. Statutory and Executive Order Reviews direct costs on tribal governments or county and regional emissions from all preempt tribal law. sources in this area. Under the CAA, the Administrator is The proposed source is currently required to approve a SIP submission List of Subjects in 40 CFR Part 52 operating in the county and is simply that complies with the provisions of the Environmental protection, Air moving a relatively short distance (1.6 Act and applicable federal regulations. pollution control, Incorporation by miles) within the same general area. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). reference, Intergovernmental relations, Emissions of VOC from gasoline Thus, in reviewing SIP submissions, Ozone, Nitrogen dioxide, Particulate operations at the relocated source are EPA’s role is to approve state choices, Matter, Reporting and recordkeeping estimated to be the same as VOC provided that they meet the criteria of requirements, Volatile organic emissions at the existing facility, even the CAA. Accordingly, this proposed compounds. when the increased storage capacity at action merely approves a state law as the new location is considered. meeting Federal requirements and does Authority: 42 U.S.C. 7401 et seq. Specifically, VOC emissions are not impose additional requirements Dated: July 6, 2015. estimated to be less than 3 tons per beyond those imposed by state law. For Heather McTeer Toney, year—minor in comparison to the that reason, this proposed action: Regional Administrator, Region 4. • county total of 31,816 tons per year. Is not a ‘‘significant regulatory [FR Doc. 2015–17736 Filed 7–17–15; 8:45 am] Since ozone concentration levels are action’’ subject to review by the Office BILLING CODE 6560–50–P currently well below the ambient air of Management and Budget under quality standard of 0.075 ppm, and Executive Orders 12866 (58 FR 51735, emissions of VOC will not increase as a October 4, 1993) and 13563 (76 FR 3821, ENVIRONMENTAL PROTECTION result of the relocation of this source, January 21, 2011); AGENCY EPA has preliminary determined that • does not impose an information the variance will not interfere with the collection burden under the provisions 40 CFR Part 52 area’s ability to continue to maintain the of the Paperwork Reduction Act (44 ozone standards. Thus, EPA has [EPA–R04–OAR–2013–0185; FRL–9930–87– U.S.C. 3501 et seq.); Region 4] preliminarily determined that the • is certified as not having a changes are consistent with the Clean significant economic impact on a Approval and Promulgation of Air Act (CAA or Act). substantial number of small entities Implementation Plans; Alabama; under the Regulatory Flexibility Act (5 III. Incorporation by Reference Infrastructure Requirements for the U.S.C. 601 et seq.); 2008 Lead National Ambient Air Quality • In this rule, the EPA is proposing to does not contain any unfunded Standards include in a final EPA rule, regulatory mandate or significantly or uniquely text that includes incorporation by affect small governments, as described AGENCY: Environmental Protection reference. In accordance with in the Unfunded Mandates Reform Act Agency (EPA). requirements of 1 CFR 51.5, EPA is of 1995 (Pub. L. 104–4); ACTION: Proposed rule. proposing to incorporate by reference • does not have Federalism the ‘‘Combs Oil Company Source implications as specified in Executive SUMMARY: The Environmental Protection Specific Variance’’ order granting Order 13132 (64 FR 43255, August 10, Agency (EPA) is proposing to approve variance on August 20, 2008. EPA has 1999); in part, and disapprove, the November made, and will continue to make, these • is not an economically significant 4, 2011, State Implementation Plan (SIP) documents generally available regulatory action based on health or submission, provided by the Alabama

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Department of Environmental docket without change and may be FOR FURTHER INFORMATION CONTACT: Zuri Management (ADEM) for inclusion into made available online at Farngalo, Air Regulatory Management the Alabama SIP. This proposal pertains www.regulations.gov, including any Section, Air Planning and to the Clean Air Act (CAA or the Act) personal information provided, unless Implementation Branch, Air, Pesticides infrastructure requirements for the 2008 the comment includes information and Toxics Management Division, U.S. Lead national ambient air quality claimed to be Confidential Business Environmental Protection Agency, standards (NAAQS). The CAA requires Information (CBI) or other information Region 4, 61 Forsyth Street SW., that each state adopt and submit a SIP whose disclosure is restricted by statute. Atlanta, Georgia 30303–8960. The for the implementation, maintenance, Do not submit through telephone number is (404) 562–9152. and enforcement of each NAAQS www.regulations.gov or email, Mr. Farngalo can be reached via promulgated by EPA, which is information that you consider to be CBI electronic mail at farngalo.zuri@ commonly referred to as an or otherwise protected. The epa.gov. ‘‘infrastructure’’ SIP. ADEM certified www.regulations.gov Web site is an SUPPLEMENTARY INFORMATION: that the Alabama SIP contains ‘‘anonymous access’’ system, which Table of Contents provisions that ensure the 2008 Lead means EPA will not know your identity NAAQS is implemented, enforced, and or contact information unless you I. Background maintained in Alabama. With the provide it in the body of your comment. II. What elements are required under exception of provisions pertaining to Sections 110(a)(1) and (2)? If you send an email comment directly III. What is EPA’s approach to the review of prevention of significant deterioration to EPA without going through (PSD) permitting, which EPA is infrastructure SIP submissions? www.regulations.gov, your email IV. What is EPA’s analysis of how Alabama proposing no action through this notice, address will be automatically captured addressed the elements of Sections and with the exception of the provisions and included as part of the comment 110(a)(1) and (2) ‘‘Infrastructure’’ respecting state boards, for which EPA that is placed in the public docket and Provisions? is proposing disapproval, EPA is V. Proposed Action made available on the Internet. If you proposing to approve Alabama’s VI. Statutory and Executive Order Reviews submit an electronic comment, EPA infrastructure SIP submission provided recommends that you include your I. Background to EPA on November 4, 2011, as name and other contact information in satisfying the required infrastructure On October 5, 1978, EPA promulgated the body of your comment and with any elements for the 2008 Lead NAAQS. a primary and secondary NAAQS under disk or CD–ROM you submit. If EPA section 109 of the Act. See 43 FR 46246. DATES: Written comments must be cannot read your comment due to Both the primary and secondary received on or before August 19, 2015. technical difficulties and cannot contact standards were set at a level of 1.5 ADDRESSES: Submit your comments, you for clarification, EPA may not be micrograms per cubic meter (mg/m3), identified by Docket ID No. EPA–R04– able to consider your comment. measured as Lead in total suspended OAR–2013–0185, by one of the Electronic files should avoid the use of particulate matter (Pb–TSP), not to be following methods: special characters, any form of exceeded by the maximum arithmetic 1. www.regulations.gov: Follow the encryption, and be free of any defects or mean concentration averaged over a on-line instructions for submitting viruses. For additional information calendar quarter. This standard was comments. about EPA’s public docket visit the EPA based on the 1977 Air Quality Criteria 2. Email: [email protected]. Docket Center homepage at http:// for Lead (USEPA, August 7, 1977). On 3. Fax: (404) 562–9019. www.epa.gov/epahome/dockets.htm. November 12, 2008 (75 FR 81126), EPA 4. Mail: ‘‘EPA–R04–OAR–2013– Docket: All documents in the issued a final rule to revise the primary 0185,’’ Air Regulatory Management and secondary Lead NAAQS. The Section, (formerly the Regulatory electronic docket are listed in the www.regulations.gov index. Although revised primary and secondary Lead Development Section), Air Planning and NAAQS were revised to 0.15 mg/m3. By listed in the index, some information is Implementation Branch, (formerly the statute, SIPs meeting the requirements not publicly available, i.e., CBI or other Air Planning Branch) Air, Pesticides of sections 110(a)(1) and (2) are to be information whose disclosure is and Toxics Management Division, U.S. submitted by states within three years restricted by statute. Certain other Environmental Protection Agency, after promulgation of a new or revised material, such as copyrighted material, Region 4, 61 Forsyth Street SW., NAAQS. Sections 110(a)(1) and (2) is not placed on the Internet and will be Atlanta, Georgia 30303–8960. require states to address basic SIP publicly available only in hard copy 5. Hand Delivery or Courier: Lynorae requirements, including emissions form. Publicly available docket Benjamin, Chief, Air Regulatory inventories, monitoring, and modeling materials are available either Management Section, Air Planning and to assure attainment and maintenance of electronically in www.regulations.gov or Implementation Branch, Air, Pesticides the NAAQS. States were required to and Toxics Management Division, U.S. in hard copy at the Air Regulatory submit such SIPs to EPA no later than Environmental Protection Agency, Management Section, Air Planning and October 15, 2011, for the 2008 Lead Region 4, 61 Forsyth Street SW., Implementation Branch, Air, Pesticides NAAQS.1 Atlanta, Georgia 30303–8960. Such and Toxics Management Division, U.S. deliveries are only accepted during the Environmental Protection Agency, 1 In these infrastructure SIP submissions states Regional Office’s normal hours of Region 4, 61 Forsyth Street SW., generally certify evidence of compliance with operation. The Regional Office’s official Atlanta, Georgia 30303–8960. EPA sections 110(a)(1) and (2) of the CAA through a requests that if at all possible, you combination of state regulations and statutes, some hours of business are Monday through of which have been incorporated into the federally- Friday, 8:30 a.m. to 4:30 p.m., excluding contact the person listed in the FOR approved SIP. In addition, certain federally- Federal holidays. FURTHER INFORMATION CONTACT section to approved, non-SIP regulations may also be Instructions: Direct your comments to schedule your inspection. The Regional appropriate for demonstrating compliance with Office’s official hours of business are sections 110(a)(1) and (2). Throughout this Docket ID No. EPA–R04–OAR–2013– rulemaking, unless otherwise indicated, the term 0185. EPA’s policy is that all comments Monday through Friday, 8:30 a.m. to ‘‘ADEM Administrative Code’’ or ‘‘ADEM Admin. received will be included in the public 4:30 p.m., excluding Federal holidays. Code’’ refers to regulations that have been approved

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Today’s action is proposing to in part related to a newly established or revised addresses the infrastructure approve and in part disapprove portions NAAQS. As mentioned above, these requirements of CAA sections 110(a)(1) of Alabama’s infrastructure SIP requirements include SIP infrastructure and 110(a)(2) for the Lead NAAQS. The submissions for the applicable elements such as modeling, monitoring, requirement for states to make a SIP requirements of the 2008 Lead NAAQS. and emissions inventories that are submission of this type arises out of On March 18, 2015, EPA approved designed to assure attainment and CAA section 110(a)(1). Pursuant to Alabama’s November 4, 2011, maintenance of the NAAQS. The section 110(a)(1), states must make SIP infrastructure SIP submission regarding requirements that are the subject of this submissions ‘‘within 3 years (or such the PSD permitting requirements for proposed rulemaking are listed below 2 shorter period as the Administrator may major sources of sections 110(a)(2)(C), and in EPA’s October 14, 2011, prescribe) after the promulgation of a prong 3 of D(i) and (J) for the 2008 Lead memorandum entitled ‘‘Guidance on national primary ambient air quality NAAQS. See 80 FR 14019. Therefore, Infrastructure State Implementation standard (or any revision thereof),’’ and EPA is not proposing any action today Plan (SIP) Elements Required Under these SIP submissions are to provide for pertaining to the PSD permitting Sections 110(a)(1) and 110(a)(2) for the the ‘‘implementation, maintenance, and requirements for major sources of 2008 Lead (Pb) National Ambient Air enforcement’’ of such NAAQS. The sections 110(a)(2)(C), prong 3 of D(i), Quality Standards (NAAQS)’’ (2011 statute directly imposes on states the and (J) for the 2008 Lead NAAQS. With Lead Infrastructure SIP Guidance). duty to make these SIP submissions, respect to Alabama’s infrastructure SIP • 110(a)(2)(A): Emission limits and and the requirement to make the submissions related to section other control measures submissions is not conditioned upon 110(a)(2)(E)(ii) requirements respecting • 110(a)(2)(B): Ambient air quality EPA’s taking any action other than the section 128 state board monitoring/data system promulgating a new or revised NAAQS. requirements, EPA is proposing to • 110(a)(2)(C): Program for enforcement, Section 110(a)(2) includes a list of disapprove this element of Alabama’s PSD, and new source review (NSR) 3 specific elements that ‘‘[e]ach such submissions in today’s rulemaking. For • 110(a)(2)(D)(i): Interstate transport plan’’ submission must address. the aspects of Alabama’s submittal provisions EPA has historically referred to these proposed for approval today, EPA notes • 110(a)(2)(D)(ii): Interstate and SIP submissions made for the purpose that the Agency is not approving any International transport provisions of satisfying the requirements of CAA specific rule, but rather proposing that • 110(a)(2)(E): Adequate personnel, sections 110(a)(1) and 110(a)(2) as Alabama’s already approved SIP meets funding, and authority ‘‘infrastructure SIP’’ submissions. certain CAA requirements. • 110(a)(2)(F): Stationary source Although the term ‘‘infrastructure SIP’’ monitoring and reporting does not appear in the CAA, EPA uses II. What elements are required under • 110(a)(2)(G): Emergency episodes the term to distinguish this particular sections 110(a)(1) and (2)? • 110(a)(2)(H): Future SIP revisions • type of SIP submission from Section 110(a) of the CAA requires 110(a)(2)(I): Nonattainment area plan submissions that are intended to satisfy or plan revision under part D.4 states to submit SIPs to provide for the • other SIP requirements under the CAA, implementation, maintenance, and 110(a)(2)(J): Consultation with such as ‘‘nonattainment SIP’’ or enforcement of a new or revised government officials, public ‘‘attainment plan SIP’’ submissions to NAAQS within three years following notification, PSD and visibility address the nonattainment planning protection the promulgation of such NAAQS, or • requirements of part D of title I of the within such shorter period as EPA may 110(a)(2)(K): Air quality modeling/ CAA, ‘‘regional haze SIP’’ submissions prescribe. Section 110(a) imposes the data required by EPA rule to address the • 110(a)(2)(L): Permitting fees obligation upon states to make a SIP visibility protection requirements of • 110(a)(2)(M): Consultation/ submission to EPA for a new or revised CAA section 169A, and nonattainment participation by affected local entities NAAQS, but the contents of that new source review permit program submission may vary depending upon III. What is EPA’s approach to the submissions to address the permit the facts and circumstances. In review of infrastructure SIP requirements of CAA, title I, part D. particular, the data and analytical tools submissions? Section 110(a)(1) addresses the timing available at the time the state develops EPA is acting upon the SIP and general requirements for and submits the SIP for a new or revised submission from Alabama that infrastructure SIP submissions, and NAAQS affects the content of the section 110(a)(2) provides more details submission. The contents of such SIP 2 Two elements identified in section 110(a)(2) are concerning the required contents of submissions may also vary depending not governed by the three year submission deadline these submissions. The list of required upon what provisions the state’s of section 110(a)(1) because SIPs incorporating elements provided in section 110(a)(2) existing SIP already contains. In the necessary local nonattainment area controls are not contains a wide variety of disparate due within three years after promulgation of a new case of the 2008 Lead NAAQS, states or revised NAAQS, but rather due at the time the provisions, some of which pertain to typically have met the basic program nonattainment area plan requirements are due required legal authority, some of which elements required in section 110(a)(2) pursuant to section 172. These requirements are: (1) pertain to required substantive program through earlier SIP submissions in Submissions required by section 110(a)(2)(C) to the provisions, and some of which pertain extent that subsection refers to a permit program as connection with the 1978 Lead NAAQS. required in part D Title I of the CAA, and (2) to requirements for both authority and Section 110(a)(1) provides the submissions required by section 110(a)(2)(I) which substantive program provisions.5 EPA procedural and timing requirements for pertain to the nonattainment planning requirements SIPs. Section 110(a)(2) lists specific of part D, Title I of the CAA. Today’s proposed 5 For example: Section 110(a)(2)(E)(i) provides rulemaking does not address infrastructure elements that states must meet for that states must provide assurances that they have elements related to section 110(a)(2)(I) or the adequate legal authority under state and local law ‘‘infrastructure’’ SIP requirements nonattainment planning requirements of to carry out the SIP; section 110(a)(2)(C) provides 110(a)(2)(C). that states must have a SIP-approved program to into Alabama’s federally-approved SIP. The terms 3 This rulemaking only addresses requirements address certain sources as required by part C of title ‘‘Alabama Code’’ or ‘‘Ala. Code’’ indicate Alabama’s for this element as they relate to attainment areas. I of the CAA; and section 110(a)(2)(G) provides that state statutes, which are not a part of the SIP unless 4 As mentioned above, this element is not states must have legal authority to address otherwise indicated. relevant to today’s proposed rulemaking. Continued

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therefore believes that while the timing infrastructure SIP requirements in a NAAQS than for a minor revision to an requirement in section 110(a)(1) is single SIP submission, and whether EPA existing NAAQS.10 unambiguous, some of the other must act upon such SIP submission in EPA notes that interpretation of statutory provisions are ambiguous. In a single action. Although section section 110(a)(2) is also necessary when particular, EPA believes that the list of 110(a)(1) directs states to submit ‘‘a EPA reviews other types of SIP required elements for infrastructure SIP plan’’ to meet these requirements, EPA submissions required under the CAA. submissions provided in section interprets the CAA to allow states to Therefore, as with infrastructure SIP 110(a)(2) contains ambiguities make multiple SIP submissions submissions, EPA also has to identify concerning what is required for separately addressing infrastructure SIP and interpret the relevant elements of inclusion in an infrastructure SIP elements for the same NAAQS. If states section 110(a)(2) that logically apply to submission. elect to make such multiple SIP these other types of SIP submissions. The following examples of submissions to meet the infrastructure For example, section 172(c)(7) requires ambiguities illustrate the need for EPA SIP requirements, EPA can elect to act that attainment plan SIP submissions to interpret some section 110(a)(1) and on such submissions either individually required by part D have to meet the section 110(a)(2) requirements with or in a larger combined action.8 ‘‘applicable requirements’’ of section respect to infrastructure SIP Similarly, EPA interprets the CAA to 110(a)(2). Thus, for example, attainment submissions for a given new or revised allow it to take action on the individual plan SIP submissions must meet the NAAQS. One example of ambiguity is parts of one larger, comprehensive requirements of section 110(a)(2)(A) that section 110(a)(2) requires that infrastructure SIP submission for a regarding enforceable emission limits ‘‘each’’ SIP submission must meet the given NAAQS without concurrent and control measures and section list of requirements therein, while EPA action on the entire submission. For 110(a)(2)(E)(i) regarding air agency has long noted that this literal reading example, EPA has sometimes elected to resources and authority. By contrast, it of the statute is internally inconsistent act at different times on various is clear that attainment plan SIP and would create a conflict with the elements and sub-elements of the same submissions required by part D would nonattainment provisions in part D of infrastructure SIP submission.9 not need to meet the portion of section title I of the Act, which specifically Ambiguities within sections 110(a)(1) 110(a)(2)(C) that pertains to the PSD address nonattainment SIP and 110(a)(2) may also arise with program required in part C of title I of requirements.6 Section 110(a)(2)(I) respect to infrastructure SIP submission the CAA, because PSD does not apply pertains to nonattainment SIP requirements for different NAAQS. to a pollutant for which an area is requirements and part D addresses Thus, EPA notes that not every element designated nonattainment and thus when attainment plan SIP submissions of section 110(a)(2) would be relevant, subject to part D planning requirements. to address nonattainment area or as relevant, or relevant in the same As this example illustrates, each type of requirements are due. For example, way, for each new or revised NAAQS. SIP submission may implicate some section 172(b) requires EPA to establish The states’ attendant infrastructure SIP elements of section 110(a)(2) but not a schedule for submission of such plans submissions for each NAAQS therefore others. for certain pollutants when the could be different. For example, the Given the potential for ambiguity in Administrator promulgates the monitoring requirements that a state some of the statutory language of section designation of an area as nonattainment, might need to meet in its infrastructure 110(a)(1) and section 110(a)(2), EPA and section 107(d)(1)(B) allows up to SIP submission for purposes of section believes that it is appropriate to two years, or in some cases three years, 110(a)(2)(B) could be very different for interpret the ambiguous portions of for such designations to be different pollutants because the content section 110(a)(1) and section 110(a)(2) promulgated.7 This ambiguity illustrates and scope of a state’s infrastructure SIP in the context of acting on a particular that rather than apply all the stated submission to meet this element might SIP submission. In other words, EPA requirements of section 110(a)(2) in a be very different for an entirely new assumes that Congress could not have strict literal sense, EPA must determine intended that each and every SIP which provisions of section 110(a)(2) 8 See, e.g., ‘‘Approval and Promulgation of submission, regardless of the NAAQS in are applicable for a particular Implementation Plans; New Mexico; Revisions to the New Source Review (NSR) State question or the history of SIP infrastructure SIP submission. Implementation Plan (SIP); Prevention of development for the relevant pollutant, Another example of ambiguity within Significant Deterioration (PSD) and Nonattainment would meet each of the requirements, or sections 110(a)(1) and 110(a)(2) with New Source Review (NNSR) Permitting,’’ 78 FR meet each of them in the same way. respect to infrastructure SIPs pertains to 4339 (January 22, 2013) (EPA’s final action Therefore, EPA has adopted an whether states must meet all of the approving the structural PSD elements of the New Mexico SIP submitted by the State separately to approach under which it reviews meet the requirements of EPA’s 2008 PM2.5 NSR infrastructure SIP submissions against emergencies as well as contingency plans that are rule), and ‘‘Approval and Promulgation of Air the list of elements in section 110(a)(2), triggered in the event of such emergencies. Quality Implementation Plans; New Mexico; 6 See, e.g., ‘‘Rule To Reduce Interstate Transport Infrastructure and Interstate Transport but only to the extent each element of Fine Particulate Matter and Ozone (Clean Air Requirements for the 2006 PM2.5 NAAQS,’’ (78 FR applies for that particular NAAQS. Interstate Rule); Revisions to Acid Rain Program; 4337) (January 22, 2013) (EPA’s final action on the Historically, EPA has elected to use Revisions to the NOX SIP Call; Final Rule,’’ 70 FR infrastructure SIP for the 2006 PM2.5 NAAQS). guidance documents to make 25162, at 25163–65 (May 12, 2005) (explaining 9 On December 14, 2007, the State of Tennessee, recommendations to states for relationship between timing requirement of section through the Tennessee Department of Environment 110(a)(2)(D) versus section 110(a)(2)(I)). and Conservation, made a SIP revision to EPA infrastructure SIPs, in some cases 7 EPA notes that this ambiguity within section demonstrating that the State meets the requirements conveying needed interpretations on 110(a)(2) is heightened by the fact that various of sections 110(a)(1) and (2). EPA proposed action newly arising issues and in some cases subparts of part D set specific dates for submission for infrastructure SIP elements (C) and (J) on conveying interpretations that have of certain types of SIP submissions in designated January 23, 2012 (77 FR 3213) and took final action nonattainment areas for various pollutants. Note, on March 14, 2012 (77 FR 14976). On April 16, already been developed and applied to e.g., that section 182(a)(1) provides specific dates 2012 (77 FR 22533) and July 23, 2012 (77 FR 10 for submission of emissions inventories for the 42997), EPA took separate proposed and final For example, implementation of the 1997 PM2.5 ozone NAAQS. Some of these specific dates are actions on all other section 110(a)(2) infrastructure NAAQS required the deployment of a system of necessarily later than three years after promulgation SIP elements of Tennessee’s December 14, 2007 new monitors to measure ambient levels of that new of the new or revised NAAQS. submittal. indicator species for the new NAAQS.

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individual SIP submissions for and EPA regulations merely for preclude EPA’s subsequent reliance on particular elements.11 EPA issued the purposes of assuring that the state in provisions in section 110(a)(2) as part of Lead Infrastructure SIP Guidance on question has the basic structural the basis for action to correct those October 14, 2011.12 EPA developed this elements for a functioning SIP for a new deficiencies at a later time. For example, document to provide states with up-to- or revised NAAQS. Because SIPs have although it may not be appropriate to date guidance for the 2008 Lead grown by accretion over the decades as require a state to eliminate all existing infrastructure SIPs. Within this statutory and regulatory requirements inappropriate director’s discretion guidance, EPA describes the duty of under the CAA have evolved, they may provisions in the course of acting on an states to make infrastructure SIP include some outmoded provisions and infrastructure SIP submission, EPA submissions to meet basic structural SIP historical artifacts. These provisions, believes that section 110(a)(2)(A) may be requirements within three years of while not fully up to date, nevertheless among the statutory bases that EPA promulgation of a new or revised may not pose a significant problem for relies upon in the course of addressing NAAQS. EPA also made the purposes of ‘‘implementation, such deficiency in a subsequent recommendations about many specific maintenance, and enforcement’’ of a action.16 subsections of section 110(a)(2) that are new or revised NAAQS when EPA relevant in the context of infrastructure evaluates adequacy of the infrastructure IV. What is EPA’s analysis of how SIP submissions. The guidance also SIP submission. EPA believes that a Alabama addressed the elements of discusses the substantively important better approach is for states and EPA to sections 110(a)(1) and (2) issues that are germane to certain focus attention on those elements of ‘‘infrastructure’’ provisions? subsections of section 110(a)(2). section 110(a)(2) of the CAA most likely The Alabama infrastructure Significantly, EPA interprets sections to warrant a specific SIP revision due to submission addresses the provisions of 110(a)(1) and 110(a)(2) such that the promulgation of a new or revised sections 110(a)(1) and (2) as described infrastructure SIP submissions need to NAAQS or other factors. below. address certain issues and need not Finally, EPA believes that its 1. 110(a)(2)(A): Emission limits and address others. Accordingly, EPA approach with respect to infrastructure other control measures: Several reviews each infrastructure SIP SIP requirements is based on a regulations within Alabama’s SIP are submission for compliance with the reasonable reading of sections 110(a)(1) relevant to air quality control applicable statutory provisions of and 110(a)(2) because the CAA provides regulations. The regulations described section 110(a)(2), as appropriate.13 other avenues and mechanisms to below have been federally approved in EPA’s approach to review of address specific substantive deficiencies the Alabama SIP and include infrastructure SIP submissions is to in existing SIPs. These other statutory enforceable emission limitations and identify the CAA requirements that are tools allow EPA to take appropriately other control measures. Alabama’s logically applicable to that submission. tailored action, depending upon the infrastructure SIP submission cites EPA believes that this approach to the nature and severity of the alleged SIP provisions of the Administrative Code review of a particular infrastructure SIP deficiency. Section 110(k)(5) authorizes that provide ADEM with the necessary submission is appropriate, because it EPA to issue a ‘‘SIP call’’ whenever the authority to adopt and enforce air would not be reasonable to read the Agency determines that a state’s SIP is quality controls such as Administrative general requirements of section substantially inadequate to attain or Codes 335–3–1–.03, ‘‘Ambient Air 110(a)(1) and the list of elements in maintain the NAAQS, to mitigate Quality Standards,’’ 335–3–1.05 110(a)(2) as requiring review of each interstate transport, or to otherwise ‘‘Sampling and Testing,’’ 335–3–1–.06 and every provision of a state’s existing comply with the CAA.14 Section ‘‘Compliance Schedule,’’ 335–3–14– SIP against all requirements in the CAA 110(k)(6) authorizes EPA to correct .03(1)(g) ‘‘Standards for Granting errors in past actions, such as past Permits’’ and 335–3–4–.15 ‘‘Secondary 11 EPA notes, however, that nothing in the CAA approvals of SIP submissions.15 Lead Smelters.’’ EPA has made the requires EPA to provide guidance or to promulgate Significantly, EPA’s determination that regulations for infrastructure SIP submissions. The preliminary determination that the CAA directly applies to states and requires the an action on a state’s infrastructure SIP provisions contained in these chapters submission of infrastructure SIP submissions, submission is not the appropriate time and Alabama’s practices are adequate to regardless of whether or not EPA provides guidance and place to address all potential protect the 2008 Lead NAAQS in the or regulations pertaining to such submissions. EPA existing SIP deficiencies does not elects to issue such guidance in order to assist State. states, as appropriate. In this action, EPA is not proposing to 12 ‘‘Guidance on Infrastructure State 14 For example, EPA issued a SIP call to Utah to approve or disapprove any existing Implementation Plan (SIP) Elements Required address specific existing SIP deficiencies related to State provisions with regard to excess under Clean Air Act Sections 110(a)(1) and the treatment of excess emissions during SSM 110(a)(2) for the 2008 Lead (Pb) National Ambient events. See ‘‘Finding of Substantial Inadequacy of emissions during startup, shutdown and Air Quality Standards (NAAQS),’’ Memorandum Implementation Plan; Call for Utah State malfunction (SSM) of operations at a from Stephen D. Page, October 14, 2001. Implementation Plan Revisions,’’ 74 FR 21639 facility. EPA believes that a number of 13 Although not intended to provide guidance for (April 18, 2011). states have SSM provisions which are 15 purposes of infrastructure SIP submissions for the EPA has used this authority to correct errors in contrary to the CAA and existing EPA 2008 Lead NAAQS, EPA notes, that following the past actions on SIP submissions related to PSD 2011 Lead Infrastructure SIP Guidance, EPA issued programs. See ‘‘Limitation of Approval of guidance, ‘‘State Implementation Plans: the ‘‘Guidance on Infrastructure State Prevention of Significant Deterioration Provisions Policy Regarding Excess Emissions Implementation Plan (SIP) Elements under Clean Concerning Greenhouse Gas Emitting-Sources in During Malfunctions, Startup, and Air Act Sections 110(a)(1) and 110(a)(2).’’ State Implementation Plans; Final Rule,’’ 75 FR Memorandum from Stephen D. Page, September 13, 82536 (December 30, 2010). EPA has previously Shutdown’’ (September 20, 1999), and 2013. This 2013 guidance provides used its authority under CAA section 110(k)(6) to recommendations for air agencies’ development and remove numerous other SIP provisions that the 16 See, e.g., EPA’s disapproval of a SIP submission the EPA’s review of infrastructure SIPs for the 2008 Agency determined it had approved in error. See, from Colorado on the grounds that it would have ozone primary and secondary NAAQS, the 2010 e.g., 61 FR 38664 (July 25, 1996) and 62 FR 34641 included a director’s discretion provision primary nitrogen dioxide (NO2) NAAQS, the 2010 (June 27, 1997) (corrections to American Samoa, inconsistent with CAA requirements, including primary sulfur dioxide (SO2) NAAQS, and the 2012 Arizona, California, Hawaii, and Nevada SIPs); 69 section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 primary fine particulate matter (PM2.5) NAAQS, as FR 67062 (November 16, 2004) (corrections to (July 21, 2010) (proposed disapproval of director’s well as infrastructure SIPs for new or revised California SIP); and 74 FR 57051 (November 3, discretion provisions); 76 FR 4540 (Jan. 26, 2011) NAAQS promulgated in the future. 2009) (corrections to Arizona and Nevada SIPs). (final disapproval of such provisions).

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the Agency is addressing such state has made the preliminary determination 4. 110(a)(2)(D)(i) Interstate transport regulations in a separate action.17 In the that Alabama’s SIP and practices are provisions: Section 110(a)(2)(D)(i) has meantime, EPA encourages any state adequate for the ambient air quality two components; 110(a)(2)(D)(i)(I) and having a deficient SSM provision to take monitoring and data system related to 110(a)(2)(D)(i)(II). Each of these steps to correct it as soon as possible. the 2008 Lead NAAQS. components have two subparts resulting Additionally, in this action, EPA is 3. 110(a)(2)(C) Program for in four distinct components, commonly not proposing to approve or disapprove enforcement, PSD, and NSR: This referred to as ‘‘prongs,’’ that must be any existing State rules with regard to element consists of three sub-elements; addressed in infrastructure SIP director’s discretion or variance enforcement, state-wide regulation of submissions. The first two prongs, provisions. EPA believes that a number new and modified minor sources and which are codified in section of states have such provisions which are minor modifications of major sources; 110(a)(2)(D)(i)(I), are provisions that contrary to the CAA and existing EPA and preconstruction permitting of major prohibit any source or other type of guidance (52 FR 45109 (November 24, sources and major modifications in emissions activity in one state from 1987)), and the Agency plans to take areas designated attainment or contributing significantly to action in the future to address such state unclassifiable for the subject NAAQS as nonattainment of the NAAQS in another regulations. In the meantime, EPA required by CAA title I part C (i.e., the state (‘‘prong 1’’), and interfering with encourages any state having a director’s major source PSD program). To meet maintenance of the NAAQS in another discretion or variance provision which these obligations, Alabama cited ADEM state (‘‘prong 2’’). The third and fourth is contrary to the CAA and EPA Administrative Codes 335–3–14–.01 prongs, which are codified in section guidance to take steps to correct the ‘‘General Provisions,’’ 335–3–14–.02 110(a)(2)(D)(i)(II), are provisions that deficiency as soon as possible. ‘‘Permit Procedure,’’ 335–3–14–.03 prohibit emissions activity in one state 2. 110(a)(2)(B) Ambient air quality ‘‘Standards for Granting Permits,’’ 335– interfering with measures required to monitoring/data system: SIPs are 3–14.04 ‘‘Prevention of Significant prevent significant deterioration of air required to provide for the Deterioration in Permitting,’’ and 335– quality in another state (‘‘prong 3’’), or establishment and operation of ambient 3–14–.05 ‘‘Air Permits Authorizing to protect visibility in another state air quality monitors; the compilation Construction in or Near Nonattainment (‘‘prong 4’’). Section 110(a)(2)(D)(ii) and analysis of ambient air quality data; Areas’’ of Alabama’s SIP. ADEM is able requires SIPs to include provisions and the submission of these data to EPA to regulate sources of lead through these insuring compliance with sections 115 upon request. ADEM Administrative above cited provisions of Alabama’s SIP. and 126 of the Act, relating to interstate Code, 335–3–1–.03 ‘‘Ambient Air In this action, EPA is only proposing to and international pollution abatement. Quality Standards,’’ and 335–3–1–.04 approve the enforcement and the 110(a)(2)(D)(i)(I)—prongs 1 and 2: ‘‘Monitoring Records and Reporting,’’ regulation of new minor sources and Section 110(a)(2)(D)(i) requires along with the Alabama Network minor modifications aspects of infrastructure SIP submissions to Description and Ambient Air Network Alabama’s section 110(a)(2)(C) include provisions prohibiting any Monitoring Plan, provide for an ambient infrastructure SIP submission. source or other type of emissions Enforcement: ADEM’s above- air quality monitoring system in the activity in one state from contributing described, SIP-approved regulations State. Annually, States develop and significantly to nonattainment, or meet the requirements for enforcement submit to EPA for approval statewide interfering with maintenance, of the of lead emission limits and control ambient monitoring network plans NAAQS in another state. The physical measures and construction permitting consistent with the requirements of 40 properties of lead prevent lead for new or modified stationary sources. CFR parts 50, 53, and 58. The annual Preconstruction PSD Permitting for emissions from experiencing that same network plan involves an evaluation of Major Sources: With respect to travel or formation phenomena as PM2.5 any proposed changes to the monitoring Alabama’s November 4, 2011 and ozone for interstate transport as network, includes the annual ambient infrastructure SIP submission related to outlined in prongs 1 and 2. More monitoring network design plan and a the preconstruction PSD permitting specifically, there is a sharp decrease in certified evaluation of the agency’s requirements for major sources of the lead concentrations, at least in the ambient monitors and auxiliary support section 110(a)(2)(C), EPA took final coarse fraction, as the distance from a 18 equipment. The latest monitoring action to approve this provision for the lead source increases. EPA believes that network plan for Alabama was 2008 Lead NAAQS on March 18, 2015. the requirements of prongs 1 and 2 can submitted on July 17, 2014, and on See 80 FR 14019. be satisfied through a state’s assessment March 6, 2015, EPA approved this plan. Regulation of minor sources and as to whether a lead source located Alabama’s approved monitoring modifications: Section 110(a)(2)(C) also within its State in close proximity to a network plan can be accessed at requires the SIP to include provisions state border has emissions that www.regulations.gov using Docket ID that govern a minor source pre- contribute significantly to the No. EPA–R04–OAR–2013–0185. EPA construction program that regulates nonattainment or interfere with emissions of the 2008 Lead NAAQS. maintenance of the NAAQS in the 17 On May 22, 2015, the EPA Administrator ADEM Administrative Code 335–3–14– neighboring state. For example, EPA’s signed a final action entitled, ‘‘State experience with the initial Lead Implementation Plans: Response to Petition for .03 ‘‘Standards for Granting Permits’’ Rulemaking; Restatement and Update of EPA’s SSM governs the preconstruction permitting designations suggest that sources that Policy Applicable to SIPs; Findings of Substantial of modifications and construction of emit less than 0.5 tpy or are located Inadequacy; and SIP Calls to Amend Provisions minor stationary sources in the State. more than two miles from the state Applying to Excess Emissions During Periods of border generally appear unlikely to Startup, Shutdown, and Malfunction.’’ The EPA has made the preliminary prepublication version of this rule is available at determination that Alabama’s SIP and contribute significantly to the http://www.epa.gov/airquality/urbanair/sipstatus/ practices are adequate for program nonattainment in another state. emissions.html. enforcement of control measures and Alabama has one lead source that has 18 On occasion, proposed changes to the emissions of lead over 0.5 tons per year monitoring network are evaluated outside of the regulation of minor sources and network plan approval process in accordance with modifications related to the 2008 Lead (tpy), but because the source is located 40 CFR part 58. NAAQS. well beyond two miles from the State

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border,19 EPA believes it is unlikely to international pollution abatement for majority of members of the state board contribute significantly to the the 2008 Lead NAAQS. or body which approves permits or nonattainment or interfere with 6. 110(a)(2)(E) Adequate personnel, enforcement orders represent the public maintenance of the NAAQS in another funding, and authority: Section interest and do not derive any state. Therefore, EPA has made the 110(a)(2)(E) requires that each significant portion of their income from preliminary determination that implementation plan provide (i) persons subject to permitting or Alabama’s SIP meets the requirements necessary assurances that the State will enforcement orders under the CAA; and of section 110(a)(2)(D)(i)(I). have adequate personnel, funding, and (2) any potential conflicts of interest by 110(a)(2)(D)(i)(II)—prong 3: With authority under state law to carry out its such board or body, or the head of an respect to Alabama’s infrastructure SIP implementation plan, (ii) that the State executive agency with similar powers be submission related to the interstate comply with the requirements adequately disclosed. After reviewing transport requirements for PSD of prong respecting State Boards pursuant to Alabama’s SIP, EPA has made the 3 of section 110(a)(2)(D)(i), EPA took section 128 of the Act, and (iii) preliminary determination that the final action to approve Alabama’s necessary assurances that, where the State’s implementation plan does not November 4, 2011 infrastructure SIP State has relied on a local or regional contain provisions to comply with submission for the 2008 Lead NAAQS government, agency, or instrumentality section 128 of the Act, and thus on March 18, 2015. See 80 FR 14019. for the implementation of any plan Alabama’s November 4, 2011, 110(a)(2)(D)(i)(II)—prong 4: With provision, the State has responsibility infrastructure SIP submission does not regard to section 110(a)(2)(D)(i)(II), the for ensuring adequate implementation meet the requirements of the Act. While visibility sub-element, referred to as of such plan provisions. EPA is Alabama has state statutes that may prong 4, significant visibility impacts proposing to approve Alabama’s SIP as address, in whole or in part, from stationary source lead emissions meeting the requirements of sections requirements related to state boards at are expected to be limited to short 110(a)(2)(E)(i) and 110(2)(E)(iii) but the state level, these provisions are not distances from the source. Lead disapprove for element 110(2)(E)(ii). included in the SIP as required by the stationary sources in Alabama are EPA’s rationale for today’s proposals CAA. Based on an evaluation of the located distances from Class I areas such respecting each section of 110(a)(2)(E) is federally-approved Alabama SIP, EPA is that visibility impacts are negligible. described in turn below. proposing to disapprove Alabama’s The 2011 Lead Infrastructure SIP To satisfy the requirements of section infrastructure SIP submission as Guidance notes that the lead constituent 110(a)(2)(E)(i) and (iii), ADEM’s meeting the requirements of of PM would likely not travel far enough infrastructure SIP submission describes 110(a)(2)(E)(ii) of the CAA for the 2008 to affect Class 1 areas and that the Alabama Code section 22–28–11, which Lead NAAQS. The submitted provisions visibility provisions of the CAA do not authorizes ADEM to adopt emission which purport to address 110(a)(2)(E)(ii) directly regulate lead. Accordingly, EPA requirements though regulations that are are severable from the other portions of has preliminarily determined that the necessary to prevent, abate, or control ADEM’s infrastructure SIP submission, Alabama SIP meets the relevant air pollution. Also, Alabama Code therefore, EPA is proposing to visibility requirements of prong 4 of section 22–28–9 authorizes the disapprove those provisions which section 110(a)(2)(D)(i). Department to employ necessary staff to relate only to sub-element 5. 110(a)(2)(D)(ii) Interstate and carry out responsibilities. The funding 110(a)(2)(E)(ii). international transport provisions: requirements are met through the 105 Section 110(a)(2)(D)(ii) requires SIPs to grants and the title V fee process. As 7. 110(a)(2)(F) Stationary source include provisions insuring compliance further evidence of the adequacy of monitoring system: ADEM’s with sections 115 and 126 of the Act, ADEM’s resources, EPA submitted a infrastructure SIP submission describes relating to interstate and international letter to Alabama on April 24, 2014, the establishment of requirements for pollution abatement. ADEM Admin. outlining 105 grant commitments and compliance testing by emissions Code 335–3–14–.04—Prevention of the current status of these commitments sampling and analysis, and for Significant Deterioration in Permitting for fiscal year 2014. The letter EPA emissions and operation monitoring to describes how Alabama notifies submitted to Alabama can be accessed ensure the quality of data in the State. neighboring states of potential emission at www.regulations.gov using Docket ID The Alabama infrastructure SIP impacts from new or modified sources No. EPA–R04–OAR–2013–0185. submission also describes how the applying for PSD permits. This Annually, states update these grant major source and minor source emission regulation requires ADEM to provide an commitments based on current SIP inventory programs collect emission opportunity for a public hearing to the requirements, air quality planning, and data throughout the State and ensure the public, which includes State or local air applicable requirements related to the quality of such data. Alabama meets pollution control agencies, ‘‘whose NAAQS. Alabama satisfactorily met all these requirements through ADEM lands may be affected by emissions from commitments agreed to in the Air Admin. Codes 335–3–1–.04 the source or modification’’ in Alabama. Planning Agreement for fiscal year 2014, ‘‘Monitoring, Records, and Reporting,’’ Additionally, Alabama does not have therefore Alabama’s grants were and 335–3–12 ‘‘Continuous Monitoring any pending obligation under sections finalized. EPA has made the preliminary Requirements for Existing Sources.’’ 115 and 126 of the CAA. Accordingly, determination that Alabama has ADEM Admin. Code 335–3–1–.04, EPA has made the preliminary adequate resources for implementation details how sources are required as determination that Alabama’s SIP and of the 2008 Lead NAAQS. appropriate to establish and maintain practices are adequate for insuring To satisfy the requirements of section records; make reports; install, use, and compliance with the applicable 110(a)(2)(E)(ii), states must comply with maintain such monitoring equipment or requirements relating to interstate and the requirements respecting State methods and provide periodic emission Boards pursuant to section 128 of the reports as the regulation requires. These 19 There is one facility in Alabama that has Lead Act. Section 110(a)(2)(E)(ii) requires that reports and records are required to be emissions greater than 0.5 tpy. The facility is the state comply with section 128 of the compiled, and submitted on forms Sanders Lead Co, Inc., which is located at 100 Sanders Rd Troy, AL 36079. This location is about CAA. Section 128 requires that the SIP furnished by the State. Additionally, 45 miles from the Georgia border. contain provisions that provide: (1) The ADEM Admin. Code 335–3–12–.02

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requires owners and operators of monitoring systems related to the 2008 has one area designated nonattainment emissions sources to ‘‘install, calibrate, Lead NAAQS. for the 2008 Lead NAAQS located in operate and maintain all monitoring 8. 110(a)(2)(G) Emergency episodes: Troy, Alabama related to the Sanders equipment necessary for continuously This section of the CAA requires that Lead Company. ADEM submitted an monitoring the pollutants.’’ 20 ADEM states demonstrate authority comparable attainment demonstration for this area Admin. Code 335–3–1–.13 ‘‘Credible with section 303 of the CAA and on November 9, 2012. EPA approved Evidence,’’ makes allowances for adequate contingency plans to this attainment demonstration on owners and/or operators to utilize ‘‘any implement such authority. ADEM January 28, 2014. See 79 FR 4407. credible evidence or information Admin. Code 335–3–2 ‘‘Air Pollution Accordingly, EPA has made the relevant’’ to demonstrate compliance Emergency’’ provides for the preliminary determination that with applicable requirements if the identification of air pollution emergency Alabama’s SIP and practices adequately appropriate performance or compliance episodes, episode criteria, and demonstrate a commitment to provide test had been performed, for the purpose emissions reduction plans. Alabama’s future SIP revisions related to the 2008 of submitting compliance certification compliance with section 303 of the CAA Lead NAAQS, when necessary. and can be used to establish whether or and adequate contingency plans to 10. 110(a)(2)(J) Consultation with not an owner or operator has violated or implement such authority is also met by government officials, public is in violation of any rule or standard. Ala. Code section 22–28–21 ‘‘Air notification, PSD, and visibility Accordingly, EPA is unaware of any Pollution Emergencies.’’ Ala. Code protection: EPA is proposing to approve provision preventing the use of credible section 22–28–21 provides ADEM the Alabama’s infrastructure SIP submission evidence in the Alabama SIP. authority to order the ‘‘person or for the 2008 Lead NAAQS with respect persons responsible for the operation or to the general requirement in section Additionally, Alabama is required to operations of one or more air 110(a)(2)(J) to include a program in the submit emissions data to EPA for contaminants sources’’ causing SIP that provides for meeting the purposes of the National Emissions ‘‘imminent danger to human health or applicable consultation requirements of Inventory (NEI). The NEI is EPA’s safety in question to reduce or section 121, the public notification central repository for air emissions data. discontinue emissions immediately.’’ requirements of section 127; and EPA published the Air Emissions The order triggers a hearing no later visibility protection requirements of Reporting Rule (AERR) on December 5, than 24-hours after issuance before the part C of the Act. With respect to 2008, which modified the requirements Environmental Management Alabama’s infrastructure SIP submission for collecting and reporting air Commission which can affirm, modify related to the preconstruction PSD emissions data (73 FR 76539). The or set aside the Director’s order. permitting requirements of section AERR shortened the time states had to Additionally, the Governor can, by 110(a)(2)(J), EPA took final action to report emissions data from 17 to 12 proclamation, declare, as to all or any approve Alabama’s November 4, 2011 months, giving states one calendar year part of said area, that an air pollution 2008 Lead NAAQS infrastructure SIP for to submit emissions data. All states are emergency exists and exercise certain these requirements on March 18, 2015. required to submit a comprehensive powers in whole or in part, by the See 80 FR 14019. EPA’s rationale for its emissions inventory every three years issuance of an order or orders to protect proposed action regarding applicable and report emissions for certain larger the public health. EPA has made the consultation requirements of section sources annually through EPA’s online preliminary determination that 121, the public notification Emissions Inventory System. States Alabama’s SIP, state laws and practices requirements of section 127, and report emissions data for the six criteria are adequate to satisfy the infrastructure visibility protection requirements is pollutants and their associated SIP obligations for emergency powers described below. precursors—nitrogen oxides, sulfur related to the 2008 Lead NAAQS. Consultation with government dioxide, ammonia, Lead, carbon 9. 110(a)(2)(H) Future SIP revisions: officials (121 consultation): Section monoxide, particulate matter, and As previously discussed, ADEM is 110(a)(2)(J) of the CAA requires states to volatile organic compounds. Many responsible for adopting air quality provide a process for consultation with states also voluntarily report emissions rules and revising SIPs as needed to local governments, designated of hazardous air pollutants. Alabama attain or maintain the NAAQS. Alabama organizations and federal land managers made its latest update to the 2013 NEI has the ability and authority to respond (FLMs) carrying out NAAQS on January 13, 2015. EPA compiles the to calls for SIP revisions, and has implementation requirements pursuant emissions data, supplementing it where provided a number of SIP revisions over to section 121 relative to consultation. necessary, and releases it to the general the years for implementation of the ADEM Admin. Code 335–3–1–.03 public through the Web site http:// NAAQS. These requirements are met ‘‘Ambient Air Quality Standards,’’ as www.epa.gov/ttn/chief/ through ADEM Administrative Codes well as its Regional Haze eiinformation.html. EPA has made the 335–1–1–.03 ‘‘Organization and Duties Implementation Plan (which allows for preliminary determination that of the Commission,’’ 21 which provides continued consultation with appropriate Alabama’s SIP and practices are ADEM with the authority to establish, state, local, and tribal air pollution adequate for the stationary source adopt, promulgate, modify, repeal and control agencies as well as the suspend rules, regulations, or corresponding FLMs), provide for 20 ADEM Admin. Code 335–3–12–.02 establishes environmental standards which may be consultation with government officials that data reporting requirements for sources applicable to Alabama or ‘‘any of its whose jurisdictions might be affected by required to conduct continuous monitoring in the SIP development activities. Specifically, state should comply with data reporting geographic parts’’ and 335–3–1–.03 requirements set forth at 40 CFR part 51, Appendix ‘‘Ambient Air Quality Standards,’’ Alabama adopted state-wide P. Section 40 CFR part 51, Appendix P includes which provides ADEM the authority to consultation procedures for the that the averaging period used for data reporting amend, revise, and incorporate the implementation of transportation should be established by the state to correspond to conformity which includes the the averaging period specified in the emission test NAAQS into its SIP. Alabama currently method used to determine compliance with an development of mobile inventories for emission standard for the pollutant/source category 21 This regulation has not been incorporated into SIP development. These consultation in question. the federally-approved SIP. procedures were developed in

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coordination with the transportation practices adequately demonstrate the costs associated with any enforcement partners in the State and are consistent State’s ability to meet the general action), until such fee requirement is with the approaches used for requirement in section 110(a)(2)(J) to superseded with respect to such sources development of mobile inventories for include a program in the SIP that by the Administrator’s approval of a fee SIPs. Required partners covered by provides for meeting the applicable program under title V. To satisfy these Alabama’s consultation procedures consultation requirements of section requirements, ADEM’s infrastructure include federal, state and local 121, the public notification SIP submission cites ADEM Admin. transportation and air quality agency requirements of section 127 and Code 335–1–6 ‘‘Application Fees,’’ 22 officials. EPA has made the preliminary visibility protection associated with which are State regulations authorized determination that Alabama’s SIP and regional haze. EPA has also by legislation. Also, ADEM has an practices adequately demonstrate preliminarily determined that it is approved Title V program with a fee consultation with government officials appropriate approve the State’s Lead structure established in ADEM Admin. related to the 2008 Lead NAAQS when infrastructure SIP submission with Code 335–1–7 ‘‘Air Division Operating necessary. respect to the visibility aspects of Permit Fees.’’ 23 The Title V fees cover Public notification (127 public section 110(a)(2)(J). EPA is making no the reasonable cost of implementation notification): To meet the public determinations with respect the PSD and enforcement of PSD and NNSR notification requirements of section requirements of section 110(a)(2)(J), permits after they have been issued. 110(a)(2)(J), ADEM cites Alabama Code which will be addressed in a different EPA has made the preliminary § 22–28–21 ‘‘Air Pollution Emergencies’’ notice. determination that Alabama’s SIP and 11. 110(a)(2)(K) Air quality modeling/ and ADEM Administrative Code 335–3– practices adequately provide for 14–.01(7) ‘‘Public Participation,’’ which data: Section 110(a)(2)(K) of the CAA permitting fees related to the Lead requires that ADEM notify the public of requires that SIPs provide for NAAQS, when necessary. any air pollution alert, warning, or performing air quality modeling so that emergency. The ADEM Web site also effects on air quality of emissions from 12. 110(a)(2)(M) Consultation/ sites air quality summary data and air NAAQS pollutants can be predicted and participation by affected local entities: quality index reports. Alabama submission of such data to the USEPA This element requires states to provide maintains a public Web site on which can be made. ADEM Administrative for consultation and participation in SIP daily air quality index forecasts and Code 335–3–1–.04 ‘‘Monitoring Records development by local political summary data are posted. This Web site and Reporting’’ and 335–3–14–.04 subdivisions affected by the SIP. can be accessed at: http:// ‘‘Prevention of Significant Deterioration Alabama Administrative Code 335–3– adem.alabama.gov/programs/air/ Permitting’’ which incorporates 40 CFR 14–.01(17) ‘‘Public Participation,’’ 335– airquality.cnt. EPA has made the part 51, Appendix W ‘‘Guideline on Air 3–14–.04(6) ‘‘Public Participation,’’ and preliminary determination that Quality Models,’’ demonstrate that 335–3–14–.05(13) ‘‘Public Participation, Alabama’s SIP and practices adequately Alabama has the authority to provide ‘‘of the Alabama SIP requires that demonstrate the State’s ability to relevant data for the purpose of ADEM notify the public of an provide public notification related to predicting the effect on ambient air application, preliminary determination, the 2008 Lead NAAQS when necessary. quality of the 2008 Lead NAAQS. the activity or activities involved in the Accordingly, EPA is proposing to Additionally, Alabama supports a permit action, any emissions change approve Alabama’s infrastructure SIP regional effort to coordinate the associated with any permit submission with respect to section development of emissions inventories modification, and the opportunity for 110(a)(2)(J) public notification. and conduct regional modeling for comment prior to making a final Visibility Protection: The 2011 Lead several NAAQS, including the 2008 permitting decision. ADEM worked Infrastructure SIP Guidance notes that Lead NAAQS, for the southeastern closely with local political subdivisions the lead constituent of PM would likely states. Taken as a whole, Alabama’s air during the development of its not travel far enough to affect Class I quality regulations and practices Transportation Conformity SIP and areas and that the visibility provisions demonstrate that ADEM has the Regional Haze Implementation Plan. of the CAA do not directly regulate lead. authority to provide relevant data for Required partners covered by Alabama’s EPA recognizes that states are subject to the purpose of predicting the effect on consultation procedures include federal, visibility protection and regional haze ambient air quality of the Lead NAAQS. state and local transportation and air program requirements under Part C of EPA has made the preliminary quality agency officials. The state and the Act (which includes sections 169A determination that Alabama’s SIP and local transportation agency officials are and 169B). However, in the event of the practices adequately demonstrate the most directly impacted by establishment of a new primary State’s ability to provide for air quality transportation conformity requirements NAAQS, the visibility protection and and modeling, along with analysis of the and are required to provide public regional haze program requirements associated data, related to the 2008 Lead involvement for their activities under part C of the CAA do not change. NAAQS when necessary. including the analysis demonstrating EPA thus does not expect states to 12. 110(a)(2)(L) Permitting fees: This how they meet transportation address visibility for this element in section requires the owner or operator of conformity requirements. Alabama has Lead infrastructure submittals. Thus, each major stationary source to pay to worked with the FLMs as a requirement EPA concludes there are no new the permitting authority, as a condition of its regional haze rule. EPA has made applicable visibility protection of any permit required under the CAA, the preliminary determination that obligations under section 110(a)(2)(J) as a fee sufficient to cover (i) the Alabama’s SIP and practices adequately a result of the 2008 Lead NAAQS. reasonable costs of reviewing and acting demonstrate consultation with affected Accordingly, EPA is proposing to upon any application for such a permit, approve section 110(a)(2)(J) of ADEM’s and (ii) if the owner or operator receives 22 infrastructure SIP submission with a permit for such source, the reasonable This regulation has not been incorporated into the federally-approved SIP. respect to visibility. costs of implementing and enforcing the 23 Title V program regulations are federally EPA has made the preliminary terms and conditions of any such permit approved but not incorporated into the federally- determination that Alabama’s SIP and (not including any court costs or other approved SIP.

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local entities related to the 2008 Lead meeting Federal requirements and does Dated: July 6, 2015. NAAQS when necessary. not impose additional requirements Heather McTeer Toney, beyond those imposed by state law. For V. Proposed Action Regional Administrator, Region 4. that reason, this proposed action: [FR Doc. 2015–17733 Filed 7–17–15; 8:45 am] With the exception of the PSD • Is not a significant regulatory action BILLING CODE 6560–50–P permitting requirements for major subject to review by the Office of sources of sections 110(a)(2)(C), prong 3 Management and Budget under of (D)(i) and (J), and the state board Executive Orders 12866 (58 FR 51735, ENVIRONMENTAL PROTECTION requirements of section 110(a)(2)(E)(ii), October 4, 1993) and 13563 (76 FR 3821, AGENCY EPA is proposing to approve that January 21, 2011); ADEM’s infrastructure SIP submission, • does not impose an information 40 CFR Part 52 submitted November 4, 2011, for the collection burden under the provisions 2008 Lead NAAQS meets the above [EPA–R04–OAR–2013–0163; FRL–9930–75– of the Paperwork Reduction Act (44 described infrastructure SIP Region 4] U.S.C. 3501 et seq.); requirements. EPA is proposing to • Approval and Promulgation of disapprove section 110(a)(2)(E)(ii) of is certified as not having a significant economic impact on a Implementation Plans; Mississippi: Alabama’s infrastructure submission Miscellaneous Changes because the State’s implementation plan substantial number of small entities does not contain provisions to comply under the Regulatory Flexibility Act (5 AGENCY: Environmental Protection with section 128 of the Act, and thus U.S.C. 601 et seq.); Agency (EPA). • Alabama’s November 4, 2011, does not contain any unfunded ACTION: Proposed rule. infrastructure SIP submission does not mandate or significantly or uniquely meet the requirements of the Act. This affect small governments, as described SUMMARY: The Environmental Protection proposed approval in part and in the Unfunded Mandates Reform Act Agency (EPA) is proposing to approve disapproval in part, however, does not of 1995 (Pub. L. 104–4); portions of a State Implementation Plan include the PSD permitting • does not have Federalism (SIP) revision submitted by the requirements for major sources of implications as specified in Executive Mississippi Department of section 110(a)(2)(C), prong 3 of (D)(i) Order 13132 (64 FR 43255, August 10, Environmental Quality (MDEQ), to EPA and (J) because the Agency has taken 1999); on July 25, 2010. The SIP revision final action on these requirements for • is not an economically significant includes multiple changes to 2008 Lead NAAQS for Alabama in a regulatory action based on health or Mississippi’s SIP to add definitions in separate rulemaking. safety risks subject to Executive Order accordance with federal regulations and Under section 179(a) of the CAA, final 13045 (62 FR 19885, April 23, 1997); to implement clarifying language. EPA disapproval of a submittal that • is not a significant regulatory action is not proposing to take action on the addresses a requirement of a CAA Part subject to Executive Order 13211 (66 FR aspects of the SIP revision related to the D Plan or is required in response to a 28355, May 22, 2001); Clean Air Interstate Rule (CAIR) or finding of substantial inadequacy as • is not subject to requirements of hazardous air pollutants at this time. described in CAA section 110(k)(5) (SIP Section 12(d) of the National DATES: Written comments must be call) starts a sanctions clock. The Technology Transfer and Advancement received on or before August 19, 2015. portion of section 110(a)(2)(E)(ii) Act of 1995 (15 U.S.C. 272 note) because ADDRESSES: Submit your comments, provisions (the provisions being application of those requirements would identified by Docket ID No. EPA–R04– proposed for disapproval in today’s be inconsistent with the Clean Air Act; OAR–2013–0163, by one of the notice) were not submitted to meet and following methods: requirements for Part D or a SIP call, • does not provide EPA with the 1. www.regulations.gov: Follow the and therefore, if EPA takes final action discretionary authority to address, as on-line instructions for submitting to disapprove this submittal, no appropriate, disproportionate human comments. sanctions will be triggered. However, if health or environmental effects, using 2. Email: [email protected]. 3. Fax: (404) 562–9019. this disapproval action is finalized, that practicable and legally permissible 4. Mail: ‘‘EPA–R04–OAR–2013– final action will trigger the requirement methods, under Executive Order 12898 0163,’’ Air Regulatory Management under section 110(c) that EPA (59 FR 7629, February 16, 1994). promulgate a federal implementation Section (formerly Regulatory The SIP is not approved to apply on plan (FIP) no later than 2 years from the Development Section), Air Planning and any Indian reservation land or in any date of the disapproval unless the State Implementation Branch, Air, Pesticides other area where EPA or an Indian tribe corrects the deficiency, and EPA and Toxics Management Division, U.S. has demonstrated that a tribe has approves the plan or plan revision Environmental Protection Agency, jurisdiction. In those areas of Indian before EPA promulgates such FIP. Region 4, 61 Forsyth Street SW., country, the rule does not have tribal Atlanta, Georgia 30303–8960. VI. Statutory and Executive Order implications as specified by Executive 5. Hand Delivery or Courier: Lynorae Reviews Order 13175 (65 FR 67249, November 9, Benjamin, Chief, Air Regulatory Under the CAA, the Administrator is 2000), nor will it impose substantial Management Section (formerly required to approve a SIP submission direct costs on tribal governments or Regulatory Development Section), Air that complies with the provisions of the preempt tribal law. Planning and Implementation Branch, Act and applicable Federal regulations. List of Subjects in 40 CFR Part 52 Air, Pesticides and Toxics Management 42 U.S.C. 7410(k); 40 CFR 52.02(a). Division, U.S. Environmental Protection Thus, in reviewing SIP submissions, Environmental protection, Air Agency, Region 4, 61 Forsyth Street EPA’s role is to approve state choices, pollution control, Incorporation by SW., Atlanta, Georgia 30303–8960. Such provided that they meet the criteria of reference, Intergovernmental relations, deliveries are only accepted during the the CAA. Accordingly, this proposed Lead, and Recordkeeping requirements. Regional Office’s normal hours of action merely approves state law as Authority: 42 U.S.C. 7401 et seq. operation. The Regional Office’s official

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hours of business are Monday through FURTHER INFORMATION CONTACT section to device.’’ The definition of ‘‘air cleaning Friday, 8:30 a.m. to 4:30 p.m., excluding schedule your inspection. The Regional device’’ includes ‘‘[a]ny method, Federal holidays. Office’s official hours of business are process or equipment which removes, Instructions: Direct your comments to Monday through Friday, 8:30 a.m. to reduces or renders less noxious air Docket ID No. EPA–R04–OAR–2013– 4:30 p.m., excluding Federal holidays. contaminants discharged into the 0163. EPA’s policy is that all comments FOR FURTHER INFORMATION CONTACT: atmosphere.’’ Mississippi’s July 25, received will be included in the public Sean Lakeman, Air Regulatory 2010, SIP revision, simply clarifies that docket without change and may be Management Section, Air Planning and the term ‘‘air pollution control device’’ made available online at Implementation Branch, Air, Pesticides has the same definition as ‘‘air cleaning www.regulations.gov, including any and Toxics Management Division, U.S. device’’ by adding a phrase noting that personal information provided, unless Environmental Protection Agency, these two terms are ‘‘synonymous.’’ the comment includes information Region 4, 61 Forsyth Street SW., Mississippi chose to link the two terms claimed to be Confidential Business Atlanta, Georgia 30303–8960. Mr. rather than provide a separate definition Information (CBI) or other information Lakeman can be reached by phone at entry for ‘‘air pollution control device.’’ whose disclosure is restricted by statute. (404) 562–9043 or via electronic mail at Mississippi is making this change to Do not submit through [email protected]. provide clarity to the regulated www.regulations.gov or email, SUPPLEMENTARY INFORMATION: community regarding the definition for information that you consider to be CBI the term ‘‘air pollution control device.’’ or otherwise protected. The I. Background 2. ‘‘Ozone Action Day’’ www.regulations.gov Web site is an On June 25, 2010, MDEQ submitted a ‘‘anonymous access’’ system, which SIP revision to EPA for approval into Mississippi’s July 25, 2010, SIP means EPA will not know your identity the Mississippi SIP. MDEQ’s July 25, submission amends the definition for or contact information unless you 2010, SIP revision includes multiple ‘‘Ozone Action Day’’ by changing the provide it in the body of your comment. changes to Mississippi’s air pollution dates from April 1 and September 30 to If you send an email comment directly control regulation APC–S–1, entitled March 1 and October 30, respectively, to to EPA without going through ‘‘Air Emission Regulations for the align with the time period for ozone www.regulations.gov, your email Prevention, Abatement, and Control of monitoring in Mississippi as specified address will be automatically captured Air Contaminants,’’ to add and amend in 40 CFR part 58. See table in 40 CFR and included as part of the comment definitions in accordance with federal part 58 entitled, ‘‘Table D–3 of that is placed in the public docket and regulations and to implement clarifying Appendix D to Part 58—Ozone made available on the Internet. If you language. Specifically, these changes Monitoring Season by State.’’ submit an electronic comment, EPA include amendments to Section 2— 3. ‘‘PM2.5’’ recommends that you include your ‘‘Definitions’’ and Section 3—‘‘Specific name and other contact information in Criteria for Sources of Particulate Mississippi added a definition of the body of your comment and with any Matter.’’ With the exception of the ‘‘PM2.5’’ as ‘‘[p]articulate matter with an disk or CD–ROM you submit. If EPA changes in Section 8 related to aerodynamic diameter less than or equal cannot read your comment due to hazardous air pollutants and the to a nominal 2.5 micrometers as technical difficulties and cannot contact changes in Section 14 related to measured by a reference method based you for clarification, EPA may not be Mississippi’s CAIR provisions, EPA is on appendix L of 40 CFR part 50 and able to consider your comment. proposing to approve Mississippi’s July designated in accordance with 40 CFR Electronic files should avoid the use of 25, 2010, SIP revision, which became part 53 or by an equivalent method special characters, any form of state effective on February 6, 2009.1 designated in accordance with 40 CFR encryption, and be free of any defects or EPA will consider action on part 53.’’ This definition is consistent viruses. For additional information Mississippi’s changes to its CAIR with EPA’s definition codified at 40 about EPA’s public docket visit the EPA provisions and its hazardous air CFR part 53 as well as the agency’s Docket Center homepage at http:// pollutants provisions in a separate longstanding characterization of fine www.epa.gov/epahome/dockets.htm. action. particular matter. This change, if Docket: All documents in the approved, will result in a renumbering electronic docket are listed in the II. Mississippi’s July 25, 2010, SIP of definitions at APC–S–1. www.regulations.gov index. Although Revision 4. ‘‘PM2.5 emissions’’ listed in the index, some information A. Changes to APC–S–1, Section 2— Mississippi added a definition of may not be publicly available, i.e., CBI ‘‘Definitions’’ or other information whose disclosure is ‘‘PM2.5 emissions’’ as ‘‘[f]inely divided restricted by statute. Certain other 1. ‘‘Air Cleaning Device’’ solid or liquid material, with an material, such as copyrighted material, Mississippi is amending the aerodynamic diameter less than or equal is not placed on the Internet and will be definition of ‘‘Air Cleaning Device’’ by to a nominal 2.5 micrometers, emitted to publicly available only in hard copy adding language to clarify that the term the ambient air as measured by an form. Publicly available docket ‘‘air pollution control device’’ is applicable EPA Test Method, an materials are available either synonymous with the term ‘‘air cleaning equivalent or alternative method electronically in www.regulations.gov or specified by EPA, or by a test method in hard copy at the Air Regulatory 1 MDEQ’s submission includes a revision to APC– specified in the approved State Management Section, Air Planning and S–1, Section 8—‘‘Provisions for Hazardous Air Implementation Plan.’’ This definition Implementation Branch, Air, Pesticides Pollutants’’ that updates the incorporate by is consistent with EPA’s definition for reference date to October 3, 2008, for relevant 2 and Toxics Management Division, U.S. federal regulations related to National Emission ‘‘direct PM2.5 emissions’’ except that Environmental Protection Agency, Standard for Hazardous Air Pollutants (NESHAPS) 2 Region 4, 61 Forsyth Street SW., and the Clean Air Mercury Rule (CAMR). However, Under the federal definition, ‘‘direct PM2.5 EPA has not incorporated APC–S–1, Section 8 into emissions’’ means ‘‘solid particles emitted directly Atlanta, Georgia 30303–8960. EPA the Mississippi SIP, and therefore, EPA is not from an air emissions source or activity, or gaseous requests that if at all possible, you proposing to approve these changes related to emissions or liquid droplets from an air emissions contact the person listed in the FOR NESHAPS and CAMR into the SIP. Continued

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the State’s definition does not include a any associated stacks, vents, outlets, or to implement clarifying language. EPA 3 condensable PM2.5 component. combination thereof. has preliminarily determined that these However, EPA considers this definition changes to the Mississippi SIP are in 3. Paragraph 7—‘‘Open Burning’’ acceptable because there are currently accordance with the Clean Air Act (CAA no PM2.5 nonattainment areas in Mississippi is amending subparagraph or Act) and EPA policy and regulations. Mississippi and because the State’s (a)(1) to clarify that fires set for burning With the exception of changes in prevention of significant deterioration of agricultural wastes in the field and/ Section 8 related to hazardous air (PSD) program at APC–S–5 requires or silvicultural wastes for forest pollutants and the changes in Section 14 sources to consider the condensable management purposes must obtain a related to Mississippi’s CAIR portion of PM2.5 emissions when permit from the Mississippi Forestry provisions, EPA is proposing to approve determining PSD applicability. This Commission regardless of whether there Mississippi’s SIP revisions provided to change, if approved, will result in a is an available Forestry Commission EPA on July 25, 2010. EPA will consider renumbering of definitions at APC–S–1. tower servicing the area in which the action on Mississippi’s changes to its burning occurs. CAIR provisions and its hazardous air B. Changes to APC–S–1, Section 3— pollutants provisions in a separate ‘‘Specific Criteria for Source of 4. Paragraph 8—‘‘Incineration’’ action. Particular Matter’’ Mississippi is adding subparagraph V. Statutory and Executive Order 1. Paragraph 4—‘‘Fuel Burning’’ (c) to clarify that the particulate matter emission limit for incinerators, 0.2 Reviews As it currently exists in the SIP, APC– grains per standard dry cubic foot of Under the CAA, the Administrator is S–1, Section 3.4(b)—‘‘Combination flue gas, does not apply to ‘‘afterburners, required to approve a SIP submission Boilers’’—states that particulate matter flares, thermal oxidizers, and other that complies with the provisions of the emissions from combination boilers similar devices used to reduce the Act and applicable federal regulations. involved in fuel burning operations that emissions of air pollutants from See 42 U.S.C. 7410(k); 40 CFR 52.02(a). utilize a mixture of combustibles are processes.’’ EPA notes that all Thus, in reviewing SIP submissions, allowed emission rates up to 0.30 grains particulate matter emissions discharged EPA’s role is to approve state choices, per standard dry cubic foot. from such control devices are part of the provided that they meet the criteria of Mississippi’s July 25, 2010, SIP total emissions from the process unit the CAA. Accordingly, this action submission added language to clarify and are not excluded from merely proposes to approve state law as that section 3.4(b) is only applicable to determinations of compliance with meeting federal requirements and does fuel burning operations that utilize a applicable emission limitations. not impose additional requirements mixture of combustibles ‘‘to produce Mississippi also amended the text of beyond those imposed by State law. For steam or heat water or any other heat subparagraph (a) to reference that reason, this proposed action: transfer medium through indirect subparagraph (c) to further clarify that • Is not a significant regulatory action means.’’ devices listed at paragraph (c) are not subject to review by the Office of required to apply the particulate matter 2. Paragraph 6—‘‘Manufacturing Management and Budget under emission limit for incinerators Processes’’ Executive Orders 12866 (58 FR 51735, identified in subparagraph (a). October 4, 1993) and 13563 (76 FR 3821, Mississippi is amending subparagraph III. Incorporation by Reference January 21, 2011); (a) relating to particulate matter • In this rule, EPA is proposing to Does not impose an information emission limits based on process weight collection burden under the provisions rate to clarify that the emission limit include in a final EPA rule regulatory text that includes incorporation by of the Paperwork Reduction Act (44 listed in that subparagraph applies to U.S.C. 3501 et seq.); the manufacturing process including reference. In accordance with • requirements of 1 CFR 51.5, EPA is Is certified as not having a proposing to incorporate by reference significant economic impact on a source or activity which condense to form substantial number of small entities particulate matter at ambient temperatures. Direct certain changes to Mississippi’s air under the Regulatory Flexibility Act (5 PM2.5 emissions include elemental carbon, directly pollution control regulation APC–S–1, emitted organic carbon, directly emitted sulfate, entitled ‘‘Air Emission Regulations for U.S.C. 601 et seq.); directly emitted nitrate, and other inorganic • the Prevention, Abatement, and Control Does not contain any unfunded particles (including but not limited to crustal mandate or significantly or uniquely material, metals, and sea salt).’’ 40 CFR 51.1000. of Air Contaminants.’’ Specifically, 3 The federal provisions for implementation of the these changes include the amendments affect small governments, as described PM2.5 NAAQS require, after January 1, 2011, that to Section 2—‘‘Definitions’’ and Section in the Unfunded Mandates Reform Act states must consider the condensable fraction of 3—‘‘Specific Criteria for Sources of of 1995 (Pub. L. 104–4); direct PM2.5 emissions when establishing limits • Does not have Federalism under 40 CFR 51.1009 (Reasonable further progress Particulate Matter’’ described in section requirements (RFP)) and 40 CFR 51.1010 II, above. EPA has made, and will implications as specified in Executive (Requirements for reasonably available control continue to make, these documents Order 13132 (64 FR 43255, August 10, technology (RACT) and reasonably available control generally available electronically 1999); measures (RACM)). See 40 CFR 51.1002(c). • Is not an economically significant However, Mississippi’s adopted definition of ‘‘PM2.5 through www.regulations.gov and/or in emissions’’ does not explicitly include the hard copy at the appropriate EPA office regulatory action based on health or condensable fraction of direct PM2.5 emissions. EPA (see the ADDRESSES section of this safety risks subject to Executive Order notes that if PM2.5 nonattainment areas are preamble for more information). 13045 (62 FR 19885, April 23, 1997); designated within the State in the future, the State’s • Is not a significant regulatory action definition of ‘‘PM2.5 emissions’’ may need to be IV. Proposed Action revised to include condensable emissions to ensure subject to Executive Order 13211 (66 FR that the RFP and RACT/RACM provisions are EPA is proposing to approve portions 28355, May 22, 2001); properly implemented. EPA also notes that of Mississippi’s July 25, 2010, SIP • Is not subject to requirements of Mississippi’s PSD permitting program at APC–S–5 submission revising Rule APC–S–1 to Section 12(d) of the National already requires sources to account for PM2.5 condensable emissions when determining PM2.5 add and amend definitions in Technology Transfer and Advancement emission limitations and PSD applicability. accordance with federal regulations and Act of 1995 (15 U.S.C. 272 note) because

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application of those requirements would section of this issue of the Federal adverse comments are received in be inconsistent with the CAA; and Register, EPA is approving the State’s response to this rule, no further activity • Does not provide EPA with the implementation plan revision as a direct is contemplated. If EPA receives adverse discretionary authority to address, as final rule without prior proposal comments, the direct final rule will be appropriate, disproportionate human because the Agency views this as a withdrawn and all public comments health or environmental effects, using noncontroversial submittal and received will be addressed in a practicable and legally permissible anticipates no adverse comments. A subsequent final rule based on this methods, under Executive Order 12898 detailed rationale for the approval is set proposed rule. EPA will not institute a (59 FR 7629, February 16, 1994). forth in the direct final rule. second comment period on this The SIP is not approved to apply on DATES: Written comments must be document. Any parties interested in any Indian reservation land or in any received on or before August 19, 2015. commenting on this document should other area where EPA or an Indian tribe ADDRESSES: Submit your comments, do so at this time. has demonstrated that a tribe has identified by Docket ID No. EPA–R04– Dated: July 6, 2015. jurisdiction. In those areas of Indian OAR–2015–0368, by one of the Heather McTeer Toney, country, the rule does not have tribal following methods: Regional Administrator, Region 4. implications as specified by Executive 1. www.regulations.gov: Follow the Order 13175 (65 FR 67249, November 9, [FR Doc. 2015–17682 Filed 7–17–15; 8:45 am] on-line instructions for submitting BILLING CODE 6560–50–P 2000), nor will it impose substantial comments. direct costs on tribal governments or 2. Email: [email protected]. preempt tribal law. 3. Fax: (404) 562–9019. ENVIRONMENTAL PROTECTION List of Subjects in 40 CFR Part 52 4. Mail: ‘‘EPA–R04–OAR–2015– AGENCY 0368,’’ Air Regulatory Management Environmental protection, Air Section (formerly the Regulatory 40 CFR Part 52 pollution control, Incorporation by Development Section), Air Planning and reference, Intergovernmental relations, Implementation Branch (formerly the [EPA–R04–OAR–2012–0696; FRL–9930–85– Nitrogen dioxide, Particulate matter, Region 4] Air Planning Branch), Air, Pesticides Reporting and recordkeeping and Toxics Management Division, U.S. requirements, Volatile organic Approval and Promulgation of Environmental Protection Agency, compounds. Implementation Plans; Georgia Region 4, 61 Forsyth Street SW., Infrastructure Requirements for the Authority: 42 U.S.C. 7401 et seq. Atlanta, Georgia 30303–8960. 2008 8-Hour Ozone National Ambient Dated: July 9, 2015. 5. Hand Delivery or Courier: Lynorae Air Quality Standards Heather McTeer Toney, Benjamin, Chief, Air Regulatory AGENCY: Environmental Protection Regional Administrator, Region 4. Management Section, Air Planning and Implementation Branch, Air, Pesticides Agency (EPA). [FR Doc. 2015–17744 Filed 7–17–15; 8:45 am] and Toxics Management Division, U.S. ACTION: Proposed rule. BILLING CODE 6560–50–P Environmental Protection Agency, Region 4, 61 Forsyth Street SW., SUMMARY: The Environmental Protection Agency (EPA) is proposing to approve ENVIRONMENTAL PROTECTION Atlanta, Georgia 30303–8960. Such portions of the May 14, 2012, State AGENCY deliveries are only accepted during the Regional Office’s normal hours of Implementation Plan (SIP) submission, 40 CFR Part 52 operation. The Regional Office’s official provided by the Georgia Department of hours of business are Monday through Natural Resources, Environmental [EPA–R04–OAR–2015–0368; FRL–9930–77– Friday, 8:30 a.m. to 4:30 p.m., excluding Protection Division (hereafter referred to Region 4] Federal holidays. as GA EPD) for inclusion into the Approval and Promulgation of Please see the direct final rule which Georgia SIP. This proposal pertains to Implementation Plans; North Carolina; is located in the Rules section of this the Clean Air Act (CAA or the Act) Nitrogen Dioxide and Sulfur Dioxide Federal Register for detailed infrastructure requirements for the 2008 National Ambient Air Quality instructions on how to submit 8-hour ozone national ambient air Standards Revisions comments. quality standards (NAAQS). The CAA requires that each state adopt and FOR FURTHER INFORMATION CONTACT: Zuri AGENCY: Environmental Protection submit a SIP for the implementation, Farngalo, Air Regulatory Management Agency (EPA). maintenance, and enforcement of each Section, Air Planning and ACTION: Proposed rule. NAAQS promulgated by EPA, which is Implementation Branch, Air, Pesticides commonly referred to as an SUMMARY: The Environmental Protection and Toxics Management Division, U.S. ‘‘infrastructure’’ SIP. GA EPD certified Agency (EPA) is proposing to approve a Environmental Protection Agency, that the Georgia SIP contains provisions State Implementation Plan revision Region 4, 61 Forsyth Street SW., that ensure the 2008 8-hour ozone submitted by the State of North Atlanta, Georgia 30303–8960. The NAAQS is implemented, enforced, and Carolina, through the North Carolina telephone number is (404) 562–9152. maintained in Georgia. With the Department of Environment and Natural Mr. Farngalo can also be reached via exception of provisions pertaining to Resources on August 13, 2012, electronic mail at farngalo.zuri@ prevention of significant deterioration pertaining to definition changes for the epa.gov. (PSD) permitting and interstate Nitrogen Dioxide and Sulfur Dioxide SUPPLEMENTARY INFORMATION: For transport requirements, EPA is National Ambient Air Quality additional information see the direct proposing to approve Georgia’s Standards. EPA is approving this SIP final rule which is published in the infrastructure SIP submission provided revision because the State has Rules Section of this Federal Register. to EPA on May 14, 2012, as satisfying demonstrated that it is consistent with A detailed rationale for the approval is the required infrastructure elements for the Clean Air Act. In the Final Rules set forth in the direct final rule. If no the 2008 8-hour ozone NAAQS.

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DATES: Written comments must be cannot read your comment due to NAAQS to 0.075 parts per million. See received on or before August 19, 2015. technical difficulties and cannot contact 77 FR 16436. Pursuant to section ADDRESSES: Submit your comments, you for clarification, EPA may not be 110(a)(1) of the CAA, states are required identified by Docket ID No. EPA–R04– able to consider your comment. to submit SIPs meeting the applicable OAR–2012–0696, by one of the Electronic files should avoid the use of requirements of section 110(a)(2) within following methods: special characters, any form of three years after promulgation of a new 1. www.regulations.gov: Follow the encryption, and be free of any defects or or revised NAAQS or within such on-line instructions for submitting viruses. For additional information shorter period as EPA may prescribe. comments. about EPA’s public docket visit the EPA Section 110(a)(2) requires states to 2. Email: [email protected]. Docket Center homepage at http:// address basic SIP elements such as 3. Fax: (404) 562–9019. www.epa.gov/epahome/dockets.htm. requirements for monitoring, basic 4. Mail: ‘‘EPA–R04–OAR–2012– Docket: All documents in the program requirements and legal 0696,’’ Air Regulatory Management electronic docket are listed in the authority that are designed to assure Section, (formerly the Regulatory www.regulations.gov index. Although attainment and maintenance of the Development Section), Air Planning and listed in the index, some information is NAAQS. States were required to submit Implementation Branch, (formerly the not publicly available, i.e., CBI or other such SIPs for the 2008 8-hour ozone Air Planning Branch) Air, Pesticides information whose disclosure is NAAQS to EPA no later than March 1 and Toxics Management Division, U.S. restricted by statute. Certain other 2011. Environmental Protection Agency, material, such as copyrighted material, Today’s action is proposing to approve Georgia’s infrastructure Region 4, 61 Forsyth Street SW., is not placed on the Internet and will be submission for the applicable Atlanta, Georgia 30303–8960. publicly available only in hard copy requirements of the 2008 8-hour ozone 5. Hand Delivery or Courier: Lynorae form. Publicly available docket NAAQS, with the exception of the PSD Benjamin, Chief, Air Regulatory materials are available either permitting requirements for major Management Section, Air Planning and electronically in www.regulations.gov or sources of sections 110(a)(2)(C), (D)(i)(II) Implementation Branch, Air, Pesticides in hard copy at the Air Regulatory prong 3 and (J) and the interstate and Toxics Management Division, U.S. Management Section, Air Planning and transport requirements of section Environmental Protection Agency, Implementation Branch, Air, Pesticides 110(a)(2)(D)(i)(I) and (II) (prongs 1, 2, Region 4, 61 Forsyth Street SW., and Toxics Management Division, U.S. and 4). With respect to Georgia’s Atlanta, Georgia 30303–8960. Such Environmental Protection Agency, Region 4, 61 Forsyth Street SW., infrastructure SIP submission related to deliveries are only accepted during the provisions pertaining to interstate Regional Office’s normal hours of Atlanta, Georgia 30303–8960. EPA requests that if at all possible, you transport requirements of section operation. The Regional Office’s official 110(a)(2)(D)(i)(I) and (II) (prongs, 1, 2, hours of business are Monday through contact the person listed in the FOR FURTHER INFORMATION CONTACT section to and 4), EPA is not proposing any action Friday, 8:30 a.m. to 4:30 p.m., excluding today regarding these requirements and Federal holidays. schedule your inspection. The Regional Office’s official hours of business are will act on these requirements in a Instructions: Direct your comments to separate action. On March 18, 2015, Docket ID No. EPA–R04–OAR–2012– Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays. EPA approved Georgia’s May 14, 2012, 0696. EPA’s policy is that all comments infrastructure SIP submission regarding received will be included in the public FOR FURTHER INFORMATION CONTACT: the PSD permitting requirements for docket without change and may be Nacosta C. Ward, Air Regulatory major sources of sections 110(a)(2)(C), made available online at Management Section, Air Planning and (D)(i)(II) prong 3 and (J) for the 2008 8- www.regulations.gov, including any Implementation Branch, Air, Pesticides hour NAAQS. See 80 FR 14019. personal information provided, unless and Toxics Management Division, U.S. Therefore, EPA is not proposing any the comment includes information Environmental Protection Agency, action in today’s proposed rulemaking claimed to be Confidential Business Region 4, 61 Forsyth Street SW., pertaining to the PSD components of Information (CBI) or other information Atlanta, Georgia 30303–8960. The sections 110(a)(2)(C), D)(i)(II) prong 3, whose disclosure is restricted by statute. telephone number is (404) 562–9140. and (J). For the aspects of Georgia’s Do not submit through Ms. Ward can be reached via electronic submittal proposed for approval today, www.regulations.gov or email, mail at [email protected]. EPA notes that the Agency is not information that you consider to be CBI SUPPLEMENTARY INFORMATION: approving any specific rule, but rather or otherwise protected. The proposing that Georgia’s already Table of Contents www.regulations.gov Web site is an approved SIP meets certain CAA ‘‘anonymous access’’ system, which I. Background requirements. means EPA will not know your identity II. What elements are required under sections or contact information unless you 110(a)(1) and (2)? 1 In these infrastructure SIP submissions states provide it in the body of your comment. III. What is EPA’s approach to the review of generally certify evidence of compliance with If you send an email comment directly infrastructure SIP submissions? sections 110(a)(1) and (2) of the CAA through a to EPA without going through IV. What is EPA’s analysis of how Georgia combination of state regulations and statutes, some addressed the elements of sections of which have been incorporated into the federally- www.regulations.gov, your email 110(a)(1) and (2) ‘‘Infrastructure’’ approved SIP. In addition, certain federally- address will be automatically captured provisions? approved, non-SIP regulations may also be and included as part of the comment V. Proposed Action appropriate for demonstrating compliance with sections 110(a)(1) and (2). Unless otherwise that is placed in the public docket and VI. Statutory and Executive Order Reviews indicated, the Georgia Rules for Air Quality (also made available on the Internet. If you I. Background referred to as ‘‘Rules’’ or ‘‘Regulations’’) of the submit an electronic comment, EPA Georgia SIP cited throughout this rulemaking have recommends that you include your On March 27, 2008, EPA promulgated been approved into Georgia’s federally-approved SIP. The state statutes cited from the Georgia Air name and other contact information in a revised NAAQS for ozone based on 8- Quality Act Article 1: Air Quality (also referred to the body of your comment and with any hour average concentrations. EPA as ‘‘O.C.G.A.’’) throughout this rulemaking, disk or CD–ROM you submit. If EPA revised the level of the 8-hour ozone however, are not approved into the Georgia SIP.

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II. What elements are required under • 110(a)(2)(C): Programs for does not appear in the CAA, EPA uses Sections 110(a)(1) and (2)? Enforcement of Control Measures and the term to distinguish this particular Section 110(a) of the CAA requires for Construction or Modification of type of SIP submission from 3 states to submit SIPs to provide for the Stationary Sources submissions that are intended to satisfy • implementation, maintenance, and 110(a)(2)(D)(i)(I) and (II): Interstate other SIP requirements under the CAA, enforcement of a new or revised Pollution Transport such as ‘‘nonattainment SIP’’ or • NAAQS within three years following 110(a)(2)(D)(ii): Interstate Pollution ‘‘attainment plan SIP’’ submissions to the promulgation of such NAAQS, or Abatement and International Air address the nonattainment planning within such shorter period as EPA may Pollution requirements of part D of title I of the • prescribe. Section 110(a) imposes the 110(a)(2)(E): Adequate Resources CAA, ‘‘regional haze SIP’’ submissions obligation upon states to make a SIP and Authority, Conflict of Interest, and required by EPA rule to address the submission to EPA for a new or revised Oversight of Local Governments and visibility protection requirements of NAAQS, but the contents of that Regional Agencies • CAA section 169A, and nonattainment submission may vary depending upon 110(a)(2)(F): Stationary Source new source review permit program the facts and circumstances. In Monitoring and Reporting • submissions to address the permit particular, the data and analytical tools 110(a)(2)(G): Emergency Powers • requirements of CAA, title I, part D. available at the time the state develops 110(a)(2)(H): SIP revisions • and submits the SIP for a new or revised 110(a)(2)(I): Plan Revisions for Section 110(a)(1) addresses the timing NAAQS affects the content of the Nonattainment Areas 4 and general requirements for • submission. The contents of such SIP 110(a)(2)(J): Consultation with infrastructure SIP submissions, and submissions may also vary depending Government Officials, Public section 110(a)(2) provides more details upon what provisions the state’s Notification, and PSD and Visibility concerning the required contents of existing SIP already contains. In the Protection these submissions. The list of required case of the 2008 8-hour ozone NAAQS, • 110(a)(2)(K): Air Quality Modeling elements provided in section 110(a)(2) states typically have met the basic and Submission of Modeling Data contains a wide variety of disparate program elements required in section • 110(a)(2)(L): Permitting fees provisions, some of which pertain to 110(a)(2) through earlier SIP • 110(a)(2)(M): Consultation and required legal authority, some of which submissions in connection with the Participation by Affected Local Entities pertain to required substantive program 1997 8-hour ozone NAAQS. III. What is EPA’s approach to the provisions, and some of which pertain More specifically, section 110(a)(1) review of infrastructure SIP to requirements for both authority and 5 provides the procedural and timing submissions? substantive program provisions. EPA requirements for SIPs. Section 110(a)(2) therefore believes that while the timing lists specific elements that states must EPA is acting upon the SIP requirement in section 110(a)(1) is meet for ‘‘infrastructure’’ SIP submission from Georgia that addresses unambiguous, some of the other requirements related to a newly the infrastructure requirements of CAA statutory provisions are ambiguous. In established or revised NAAQS. As sections 110(a)(1) and 110(a)(2) for the particular, EPA believes that the list of mentioned above, these requirements 2008 8-hour ozone NAAQS. The required elements for infrastructure SIP include basic SIP elements such as requirement for states to make a SIP submissions provided in section submission of this type arises out of requirements for monitoring, basic 110(a)(2) contains ambiguities CAA section 110(a)(1). Pursuant to program requirements and legal concerning what is required for section 110(a)(1), states must make SIP authority that are designed to assure inclusion in an infrastructure SIP submissions ‘‘within 3 years (or such attainment and maintenance of the submission. NAAQS. The requirements of section shorter period as the Administrator may 110(a)(2) are summarized below and in prescribe) after the promulgation of a The following examples of EPA’s September 13, 2013, national primary ambient air quality ambiguities illustrate the need for EPA memorandum entitled ‘‘Guidance on standard (or any revision thereof),’’ and to interpret some section 110(a)(1) and Infrastructure State Implementation these SIP submissions are to provide for section 110(a)(2) requirements with Plan (SIP) Elements under Clean Air Act the ‘‘implementation, maintenance, and respect to infrastructure SIP Sections 110(a)(1) and 110(a)(2).’’ 2 enforcement’’ of such NAAQS. The submissions for a given new or revised • 110(a)(2)(A): Emission Limits and statute directly imposes on states the NAAQS. One example of ambiguity is Other Control Measures duty to make these SIP submissions, that section 110(a)(2) requires that • 110(a)(2)(B): Ambient Air Quality and the requirement to make the ‘‘each’’ SIP submission must meet the Monitoring/Data System submissions is not conditioned upon list of requirements therein, while EPA EPA’s taking any action other than has long noted that this literal reading 2 Two elements identified in section 110(a)(2) are promulgating a new or revised NAAQS. of the statute is internally inconsistent not governed by the three year submission deadline Section 110(a)(2) includes a list of of section 110(a)(1) because SIPs incorporating and would create a conflict with the necessary local nonattainment area controls are not specific elements that ‘‘[e]ach such nonattainment provisions in part D of due within three years after promulgation of a new plan’’ submission must address. title I of the Act, which specifically or revised NAAQS, but rather due at the time the EPA has historically referred to these address nonattainment SIP nonattainment area plan requirements are due SIP submissions made for the purpose pursuant to section 172. These requirements are: (1) Submissions required by section 110(a)(2)(C) to the of satisfying the requirements of CAA 5 For example: Section 110(a)(2)(E)(i) provides extent that subsection refers to a permit program as sections 110(a)(1) and 110(a)(2) as that states must provide assurances that they have required in part D Title I of the CAA; and (2) ‘‘infrastructure SIP’’ submissions. adequate legal authority under state and local law submissions required by section 110(a)(2)(I) which Although the term ‘‘infrastructure SIP’’ to carry out the SIP; section 110(a)(2)(C) provides pertain to the nonattainment planning requirements that states must have a SIP-approved program to of part D, Title I of the CAA. Today’s proposed address certain sources as required by part C of title rulemaking does not address infrastructure 3 This rulemaking only addresses requirements I of the CAA; and section 110(a)(2)(G) provides that elements related to section 110(a)(2)(I) or the for this element as they relate to attainment areas. states must have legal authority to address nonattainment planning requirements of 4 As mentioned above, this element is not emergencies as well as contingency plans that are 110(a)(2)(C). relevant to today’s proposed rulemaking. triggered in the event of such emergencies.

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requirements.6 Section 110(a)(2)(I) allow it to take action on the individual program required in part C of title I of pertains to nonattainment SIP parts of one larger, comprehensive the CAA, because PSD does not apply requirements and part D addresses infrastructure SIP submission for a to a pollutant for which an area is when attainment plan SIP submissions given NAAQS without concurrent designated nonattainment and thus to address nonattainment area action on the entire submission. For subject to part D planning requirements. requirements are due. For example, example, EPA has sometimes elected to As this example illustrates, each type of section 172(b) requires EPA to establish act at different times on various SIP submission may implicate some a schedule for submission of such plans elements and sub-elements of the same elements of section 110(a)(2) but not for certain pollutants when the infrastructure SIP submission.9 others. Ambiguities within sections 110(a)(1) Administrator promulgates the Given the potential for ambiguity in and 110(a)(2) may also arise with designation of an area as nonattainment, some of the statutory language of section respect to infrastructure SIP submission and section 107(d)(1)(B) allows up to 110(a)(1) and section 110(a)(2), EPA requirements for different NAAQS. two years, or in some cases three years, believes that it is appropriate to Thus, EPA notes that not every element for such designations to be interpret the ambiguous portions of 7 of section 110(a)(2) would be relevant, promulgated. This ambiguity illustrates section 110(a)(1) and section 110(a)(2) or as relevant, or relevant in the same that rather than apply all the stated in the context of acting on a particular requirements of section 110(a)(2) in a way, for each new or revised NAAQS. SIP submission. In other words, EPA strict literal sense, EPA must determine The states’ attendant infrastructure SIP assumes that Congress could not have which provisions of section 110(a)(2) submissions for each NAAQS therefore intended that each and every SIP are applicable for a particular could be different. For example, the submission, regardless of the NAAQS in infrastructure SIP submission. monitoring requirements that a state Another example of ambiguity within might need to meet in its infrastructure question or the history of SIP sections 110(a)(1) and 110(a)(2) with SIP submission for purposes of section development for the relevant pollutant, respect to infrastructure SIPs pertains to 110(a)(2)(B) could be very different for would meet each of the requirements, or whether states must meet all of the different pollutants because the content meet each of them in the same way. infrastructure SIP requirements in a and scope of a state’s infrastructure SIP Therefore, EPA has adopted an single SIP submission, and whether EPA submission to meet this element might approach under which it reviews must act upon such SIP submission in be very different for an entirely new infrastructure SIP submissions against a single action. Although section NAAQS than for a minor revision to an the list of elements in section 110(a)(2), 110(a)(1) directs states to submit ‘‘a existing NAAQS.10 but only to the extent each element plan’’ to meet these requirements, EPA EPA notes that interpretation of applies for that particular NAAQS. interprets the CAA to allow states to section 110(a)(2) is also necessary when Historically, EPA has elected to use make multiple SIP submissions EPA reviews other types of SIP guidance documents to make separately addressing infrastructure SIP submissions required under the CAA. recommendations to states for elements for the same NAAQS. If states Therefore, as with infrastructure SIP infrastructure SIPs, in some cases elect to make such multiple SIP submissions, EPA also has to identify conveying needed interpretations on submissions to meet the infrastructure and interpret the relevant elements of newly arising issues and in some cases SIP requirements, EPA can elect to act section 110(a)(2) that logically apply to conveying interpretations that have on such submissions either individually these other types of SIP submissions. already been developed and applied to or in a larger combined action.8 For example, section 172(c)(7) requires individual SIP submissions for Similarly, EPA interprets the CAA to that attainment plan SIP submissions particular elements.11 EPA most required by part D have to meet the recently issued guidance for 6 See, e.g., ‘‘Rule To Reduce Interstate Transport ‘‘applicable requirements’’ of section infrastructure SIPs on September 13, of Fine Particulate Matter and Ozone (Clean Air 110(a)(2). Thus, for example, attainment 2013 (2013 Guidance).12 EPA developed Interstate Rule); Revisions to Acid Rain Program; plan SIP submissions must meet the Revisions to the NOx SIP Call; Final Rule,’’ 70 FR this document to provide states with up- 25162, at 25163—65 (May 12, 2005) (explaining requirements of section 110(a)(2)(A) to-date guidance for infrastructure SIPs relationship between timing requirement of section regarding enforceable emission limits for any new or revised NAAQS. Within 110(a)(2)(D) versus section 110(a)(2)(I)). and control measures and section this guidance, EPA describes the duty of 7 EPA notes that this ambiguity within section 110(a)(2)(E)(i) regarding air agency 110(a)(2) is heightened by the fact that various states to make infrastructure SIP subparts of part D set specific dates for submission resources and authority. By contrast, it submissions to meet basic structural SIP of certain types of SIP submissions in designated is clear that attainment plan SIP requirements within three years of nonattainment areas for various pollutants. Note, submissions required by part D would promulgation of a new or revised e.g., that section 182(a)(1) provides specific dates not need to meet the portion of section for submission of emissions inventories for the NAAQS. EPA also made ozone NAAQS. Some of these specific dates are 110(a)(2)(C) that pertains to the PSD recommendations about many specific necessarily later than three years after promulgation subsections of section 110(a)(2) that are of the new or revised NAAQS. 9 On December 14, 2007, the State of Tennessee, relevant in the context of infrastructure 8 See, e.g., ‘‘Approval and Promulgation of through the Tennessee Department of Environment Implementation Plans; New Mexico; Revisions to and Conservation, made a SIP revision to EPA the New Source Review (NSR) State demonstrating that the State meets the requirements 11 EPA notes, however, that nothing in the CAA Implementation Plan (SIP); Prevention of of sections 110(a)(1) and (2). EPA proposed action requires EPA to provide guidance or to promulgate Significant Deterioration (PSD) and Nonattainment for infrastructure SIP elements (C) and (J) on regulations for infrastructure SIP submissions. The New Source Review (NNSR) Permitting,’’ 78 FR January 23, 2012 (77 FR 3213) and took final action CAA directly applies to states and requires the 4339 (January 22, 2013) (EPA’s final action on March 14, 2012 (77 FR 14976). On April 16, submission of infrastructure SIP submissions, approving the structural PSD elements of the New 2012 (77 FR 22533) and July 23, 2012 (77 FR regardless of whether or not EPA provides guidance Mexico SIP submitted by the State separately to 42997), EPA took separate proposed and final or regulations pertaining to such submissions. EPA meet the requirements of EPA’s 2008 PM2.5 NSR actions on all other section 110(a)(2) infrastructure elects to issue such guidance in order to assist rule), and ‘‘Approval and Promulgation of Air SIP elements of Tennessee’s December 14, 2007 states, as appropriate. Quality Implementation Plans; New Mexico; submittal. 12 ‘‘Guidance on Infrastructure State 10 Infrastructure and Interstate Transport For example, implementation of the 1997 PM2.5 Implementation Plan (SIP) Elements under Clean Requirements for the 2006 PM2.5 NAAQS,’’ (78 FR NAAQS required the deployment of a system of Air Act Sections 110(a)(1) and 110(a)(2),’’ 4337) (January 22, 2013) (EPA’s final action on the new monitors to measure ambient levels of that new Memorandum from Stephen D. Page, September 13, infrastructure SIP for the 2006 PM2.5 NAAQS). indicator species for the new NAAQS. 2013.

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SIP submissions.13 The guidance also pollutants, including greenhouse gases. aware of such existing provisions.14 It is discusses the substantively important By contrast, structural PSD program important to note that EPA’s approval of issues that are germane to certain requirements do not include provisions a state’s infrastructure SIP submission subsections of section 110(a)(2). that are not required under EPA’s should not be construed as explicit or Significantly, EPA interprets sections regulations at 40 CFR 51.166 but are implicit re-approval of any existing 110(a)(1) and 110(a)(2) such that merely available as an option for the potentially deficient provisions that infrastructure SIP submissions need to state, such as the option to provide relate to the three specific issues just address certain issues and need not grandfathering of complete permit described. address others. Accordingly, EPA applications with respect to the 2012 EPA’s approach to review of reviews each infrastructure SIP PM2.5 NAAQS. Accordingly, the latter infrastructure SIP submissions is to submission for compliance with the optional provisions are types of identify the CAA requirements that are applicable statutory provisions of provisions EPA considers irrelevant in logically applicable to that submission. section 110(a)(2), as appropriate. the context of an infrastructure SIP EPA believes that this approach to the As an example, section 110(a)(2)(E)(ii) action. review of a particular infrastructure SIP is a required element of section For other section 110(a)(2) elements, submission is appropriate, because it 110(a)(2) for infrastructure SIP however, EPA’s review of a state’s would not be reasonable to read the submissions. Under this element, a state infrastructure SIP submission focuses general requirements of section must meet the substantive requirements on assuring that the state’s SIP meets 110(a)(1) and the list of elements in of section 128, which pertain to state basic structural requirements. For 110(a)(2) as requiring review of each boards that approve permits or example, section 110(a)(2)(C) includes, and every provision of a state’s existing enforcement orders and heads of among other things, the requirement SIP against all requirements in the CAA executive agencies with similar powers. that states have a program to regulate and EPA regulations merely for Thus, EPA reviews infrastructure SIP minor new sources. Thus, EPA purposes of assuring that the state in submissions to ensure that the state’s evaluates whether the state has an EPA- question has the basic structural implementation plan appropriately approved minor new source review elements for a functioning SIP for a new addresses the requirements of section program and whether the program or revised NAAQS. Because SIPs have 110(a)(2)(E)(ii) and section 128. The addresses the pollutants relevant to that grown by accretion over the decades as 2013 Guidance explains EPA’s NAAQS. In the context of acting on an statutory and regulatory requirements interpretation that there may be a infrastructure SIP submission, however, under the CAA have evolved, they may variety of ways by which states can EPA does not think it is necessary to include some outmoded provisions and appropriately address these substantive conduct a review of each and every historical artifacts. These provisions, statutory requirements, depending on provision of a state’s existing minor while not fully up to date, nevertheless the structure of an individual state’s source program (i.e., already in the may not pose a significant problem for permitting or enforcement program (e.g., existing SIP) for compliance with the the purposes of ‘‘implementation, whether permits and enforcement requirements of the CAA and EPA’s maintenance, and enforcement’’ of a orders are approved by a multi-member regulations that pertain to such new or revised NAAQS when EPA board or by a head of an executive programs. evaluates adequacy of the infrastructure agency). However they are addressed by With respect to certain other issues, SIP submission. EPA believes that a the state, the substantive requirements EPA does not believe that an action on better approach is for states and EPA to of section 128 are necessarily included a state’s infrastructure SIP submission is focus attention on those elements of in EPA’s evaluation of infrastructure SIP necessarily the appropriate type of section 110(a)(2) of the CAA most likely submissions because section action in which to address possible to warrant a specific SIP revision due to 110(a)(2)(E)(ii) explicitly requires that deficiencies in a state’s existing SIP. the promulgation of a new or revised the state satisfy the provisions of section These issues include: (i) Existing NAAQS or other factors. 128. For example, EPA’s 2013 Guidance As another example, EPA’s review of provisions related to excess emissions from sources during periods of startup, gives simpler recommendations with infrastructure SIP submissions with respect to carbon monoxide than other respect to the PSD program shutdown, or malfunction that may be contrary to the CAA and EPA’s policies NAAQS pollutants to meet the visibility requirements in sections 110(a)(2)(C), requirements of section (D)(i)(II), and (J) focuses upon the addressing such excess emissions (‘‘SSM’’); (ii) existing provisions related 110(a)(2)(D)(i)(II), because carbon structural PSD program requirements monoxide does not affect visibility. As contained in part C and EPA’s PSD to ‘‘director’s variance’’ or ‘‘director’s discretion’’ that may be contrary to the a result, an infrastructure SIP regulations. Structural PSD program submission for any future new or requirements include provisions CAA because they purport to allow revisions to SIP-approved emissions revised NAAQS for carbon monoxide necessary for the PSD program to need only state this fact in order to address all regulated sources and NSR limits while limiting public process or not requiring further approval by EPA; address the visibility prong of section 110(a)(2)(D)(i)(II). 13 EPA’s September 13, 2013, guidance did not and (iii) existing provisions for PSD make recommendations with respect to programs that may be inconsistent with Finally, EPA believes that its infrastructure SIP submissions to address section current requirements of EPA’s ‘‘Final approach with respect to infrastructure 110(a)(2)(D)(i)(I). EPA issued the guidance shortly NSR Improvement Rule,’’ 67 FR 80186 SIP requirements is based on a after the U.S. Supreme Court agreed to review the reasonable reading of sections 110(a)(1) D.C. Circuit decision in EME Homer City, 696 F.3d7 (December 31, 2002), as amended by 72 (D.C. Cir. 2012) which had interpreted the FR 32526 (June 13, 2007) (‘‘NSR 14 requirements of section 110(a)(2)(D)(i)(I). In light of Reform’’). Thus, EPA believes it may By contrast, EPA notes that if a state were to the uncertainty created by ongoing litigation, EPA include a new provision in an infrastructure SIP elected not to provide additional guidance on the approve an infrastructure SIP submission that contained a legal deficiency, such requirements of section 110(a)(2)(D)(i)(I) at that submission without scrutinizing the as a new exemption for excess emissions during time. As the guidance is neither binding nor totality of the existing SIP for such SSM events, then EPA would need to evaluate that required by statute, whether EPA elects to provide potentially deficient provisions and may provision for compliance against the rubric of guidance on a particular section has no impact on applicable CAA requirements in the context of the a state’s CAA obligations. approve the submission even if it is action on the infrastructure SIP.

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and 110(a)(2) because the CAA provides IV. What is EPA’s analysis of how discretion or variance provision which other avenues and mechanisms to Georgia addressed the elements of is contrary to the CAA and EPA address specific substantive deficiencies Sections 110(a)(1) and (2) guidance to take steps to correct the in existing SIPs. These other statutory ‘‘Infrastructure’’ Provisions? deficiency as soon as possible. tools allow EPA to take appropriately The Georgia infrastructure submission 2. 110(a)(2)(B) Ambient air quality tailored action, depending upon the addresses the provisions of sections monitoring/data system: SIPs are nature and severity of the alleged SIP 110(a)(1) and (2) as described below. required to provide for the deficiency. Section 110(k)(5) authorizes 1. 110(a)(2)(A) Emission limits and establishment and operation of ambient EPA to issue a ‘‘SIP call’’ whenever the other control measures: There are air quality monitors; the compilation Agency determines that a state’s SIP is several provisions within the Georgia and analysis of ambient air quality data; and the submission of these data to EPA substantially inadequate to attain or Rules for Air Quality that provide GA upon request. Georgia Air Quality Act maintain the NAAQS, to mitigate EPD with the necessary authority to Article 1: Air Quality (O.C.G.A. Section interstate transport, or to otherwise adopt and enforce air quality controls, 12–9–6 (b)(13) Powers and duties of 15 which include enforceable emission comply with the CAA. Section director as to air quality generally) along 110(k)(6) authorizes EPA to correct limitations and other control measures. Rule 391–3–1–.01 ‘‘Definitions’’ with the Georgia Annual Monitoring errors in past actions, such as past Network Plan, provides GA EPD with 16 provides definitions of emissions approvals of SIP submissions. the authority to monitor ambient air Significantly, EPA’s determination that limitations, controls, and standards for Georgia. Rules 391–3–1–.02 quality in Georgia through an ambient an action on a state’s infrastructure SIP air quality monitoring system in the submission is not the appropriate time ‘‘Provisions’’ and 391–3–1–.03 ‘‘Permits’’ provides emissions State, which includes the monitoring of and place to address all potential limitations, control measures and ozone at appropriate locations existing SIP deficiencies does not compliance schedules and provides throughout the state using the EPA preclude EPA’s subsequent reliance on Georgia with the authority to enforce approved Federal Reference Method or provisions in section 110(a)(2) as part of such provisions for ozone. EPA has equivalent monitors. Annually, States the basis for action to correct those made the preliminary determination develop and submit to EPA for approval deficiencies at a later time. For example, that the provisions contained in these statewide ambient monitoring network although it may not be appropriate to rules are adequate to protect the 2008 8- plans consistent with the requirements require a state to eliminate all existing hour ozone NAAQS in the State. of 40 CFR parts 50, 53, and 58. The inappropriate director’s discretion In this action, EPA is not proposing to annual network plan involves an provisions in the course of acting on an approve or disapprove any existing evaluation of any proposed changes to infrastructure SIP submission, EPA State provisions with regard to excess the monitoring network, includes the believes that section 110(a)(2)(A) may be emissions during startup, shutdown or annual ambient monitoring network among the statutory bases that EPA malfunction (SSM) of operations at a design plan and a certified evaluation of relies upon in the course of addressing facility. EPA believes that a number of the agency’s ambient monitors and 19 such deficiency in a subsequent states have SSM provisions which are auxiliary support equipment. The latest monitoring network plan for action.17 contrary to the CAA and existing EPA guidance, ‘‘State Implementation Plans: Georgia was submitted to EPA on June Policy Regarding Excess Emissions 1, 2014, and on November 7, 2014, EPA During Malfunctions, Startup, and approved this plan. Georgia’s approved monitoring network plan can be 15 For example, EPA issued a SIP call to Utah to Shutdown’’ (September 20, 1999), and the Agency is addressing such state accessed at www.regulations.gov using address specific existing SIP deficiencies related to Docket ID No. EPA–R04–OAR–2012– the treatment of excess emissions during SSM regulations in a separate action.18 In the events. See ‘‘Finding of Substantial Inadequacy of meantime, EPA encourages any state 0696. EPA has made the preliminary Implementation Plan; Call for Utah State having a deficient SSM provision to take determination that Georgia’s SIP and Implementation Plan Revisions,’’ 74 FR 21639 steps to correct it as soon as possible. practices are adequate for the ambient (April 18, 2011). Additionally, in this action, EPA is air quality monitoring and data system 16 EPA has used this authority to correct errors in not proposing to approve or disapprove related to the 2008 8-hour ozone past actions on SIP submissions related to PSD NAAQS. programs. See ‘‘Limitation of Approval of any existing State rules with regard to director’s discretion or variance 3. 110(a)(2)(C) Program for Prevention of Significant Deterioration Provisions enforcement of control measures Concerning Greenhouse Gas Emitting-Sources in provisions. EPA believes that a number State Implementation Plans; Final Rule,’’ 75 FR of states have such provisions which are including review of proposed new 82536 (December 30, 2010). EPA has previously contrary to the CAA and existing EPA sources: This element consists of three used its authority under CAA section 110(k)(6) to guidance (52 FR 45109 (November 24, sub-elements; enforcement, state-wide remove numerous other SIP provisions that the 1987)), and the Agency plans to take regulation of new and modified minor Agency determined it had approved in error. See, sources and minor modifications of e.g., 61 FR 38664 (July 25, 1996) and 62 FR 34641 action in the future to address such state regulations. In the meantime, EPA major sources; and preconstruction (June 27, 1997) (corrections to American Samoa, permitting of major sources and major Arizona, California, Hawaii, and Nevada SIPs); 69 encourages any state having a director’s FR 67062 (November 16, 2004) (corrections to modifications in areas designated California SIP); and 74 FR 57051 (November 3, 18 On May 22, 2015, the EPA Administrator attainment or unclassifiable for the 2009) (corrections to Arizona and Nevada SIPs). signed a final action entitled, ‘‘State subject NAAQS as required by CAA title 17 See, e.g., EPA’s disapproval of a SIP submission Implementation Plans: Response to Petition for I part C (i.e., the major source from Colorado on the grounds that it would have Rulemaking; Restatement and Update of EPA’s SSM PSD program). To meet these Policy Applicable to SIPs; Findings of Substantial included a director’s discretion provision Inadequacy; and SIP Calls to Amend Provisions obligations, Georgia cited Rules 391–3– inconsistent with CAA requirements, including Applying to Excess Emissions During Periods of section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 Startup, Shutdown, and Malfunction.’’ The 19 On occasion, proposed changes to the (July 21, 2010) (proposed disapproval of director’s prepublication version of this rule is available at monitoring network are evaluated outside of the discretion provisions); 76 FR 4540 (Jan. 26, 2011) http://www.epa.gov/airquality/urbanair/sipstatus/ network plan approval process in accordance with (final disapproval of such provisions). emissions.html. 40 CFR part 58.

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1–.07 ‘‘Inspections and Investigations,’’ infrastructure SIP submissions. The first pursuant to section 128 of the Act, and Rule 391–3–1–.09 ‘‘Enforcement,’’ and two prongs, which are codified in (iii) necessary assurances that, where Rule 391–3–1–.03(1), ‘‘Construction section 110(a)(2)(D)(i)(I), are provisions the State has relied on a local or (SIP) Permit’’ along with the Georgia Air that prohibit any source or other type of regional government, agency, or Quality Act Article 1: Air Quality emissions activity in one state from instrumentality for the implementation (O.C.G.A. Sections 12–9–13 Proceedings contributing significantly to of any plan provision, the State has for enforcement and 12–9–7 Permit nonattainment of the NAAQS in another responsibility for ensuring adequate required; application; issuance; state (‘‘prong 1’’), and interfering with implementation of such plan provisions. revocation, suspension, or amendment) maintenance of the NAAQS in another EPA is proposing to approve Georgia’s each of which pertain to enforcement state (‘‘prong 2’’). The third and fourth SIP as meeting the requirements of and permitting of any new major prongs, which are codified in section section 110(a)(2)(E). EPA’s rationale for stationary source or any project at an 110(a)(2)(D)(i)(II), are provisions that today’s proposal respecting sub- existing major stationary source in an prohibit emissions activity in one state elements (i), (ii), and (iii) is described area designated as attainment or interfering with measures required to below. unclassifiable as well as regulation of prevent significant deterioration of air In support of EPA’s proposal to minor stationary sources. In this action, quality in another state (‘‘prong 3’’), or approve sub-elements 110(a)(2)(E)(i) and EPA is only proposing to approve to protect visibility in another state (iii), EPA notes that GA EPD is Georgia’s infrastructure SIP submission (‘‘prong 4’’). With respect to Georgia’s responsible for promulgating rules and for the 2008 8-hour ozone NAAQS with infrastructure SIP submissions related to regulations for the NAAQS, emissions respect to the general requirement in the interstate transport requirements of standards general policies, a system of section 110(a)(2)(C) to include a section 110(a)(2)(D)(i)(I) and permits, and fee schedules for the program in the SIP that provides for the 110(a)(2)(D)(i)(II) (prongs 1 through 4), review of plans, and other planning enforcement of emission limits and EPA is not proposing any action today needs. Georgia’s infrastructure SIP control measures on sources of oxides of regarding these requirements. With submission cites Georgia Air Quality nitrogen (NOx) and volatile organic respect to Georgia’s May 14, 2012, Act Article 1: Air Quality (O.C.G.A. compounds (VOCs) and the regulation infrastructure SIP submission related to Section 12–9–10 Permit related fees; of minor sources and modifications to the preconstruction PSD permitting costs of public notice and Rule 391–3– assist in the protection of air quality in requirements for major sources of 1–.03(9) ‘‘Georgia Air Permit Fee nonattainment, attainment or section 110(a)(2)(D)(i)(II) (prong 3), EPA System’’ which provides the State’s unclassifiable areas. took final action to approve these adequate funding and authority and Enforcement: GA EPD’s above- provisions for the 2008 8-hour ozone rules for permit fees. Additionally, as described, SIP-approved regulations NAAQS on March 18, 2015. See 80 FR evidence of the adequacy of GA EPD’s provide for enforcement of ozone 14019. EPA will act on prongs 1, 2, and resources, EPA submitted a letter to precursor (VOC and NOx) emission 4 of section 110(a)(2)(D)(i)(I) and (II) in Georgia on March 26, 2014, outlining limits and control measures. a separate action. 105 grant commitments and the current Preconstruction PSD Permitting for 5. 110(a)(2)(D)(ii) Interstate Pollution status of these commitments for fiscal Major Sources: With respect to Georgia’s Abatement and International Air year 2013. The letter EPA submitted to May 14, 2012, infrastructure SIP Pollution: Section 110(a)(2)(D)(ii) Georgia can be accessed at submission related to the requires SIPs to include provisions www.regulations.gov using Docket ID preconstruction PSD permitting ensuring compliance with sections 115 No. EPA–R04–OAR–2012–0696. requirements for major sources of and 126 of the Act, relating to interstate Annually, states update these grant section 110(a)(2)(C), EPA took final and international pollution abatement. commitments based on current SIP action to approve these provisions for Rule 391–3–1–.02 ‘‘Provisions’’ requirements, air quality planning, and the 2008 8-hour ozone NAAQS on provides how GA EPD will notify applicable requirements related to the March 18, 2015. See 80 FR 14019. neighboring states of potential impacts NAAQS. Georgia satisfactorily met all Regulation of minor sources and from new or modified sources commitments agreed to in the Air modifications: Section 110(a)(2)(C) also consistent with the requirements of 40 Planning Agreement for fiscal year 2013, requires the SIP to include provisions CFR 51.166. In addition, Georgia does therefore Georgia’s grants were finalized that govern the minor source program not have any pending obligation under and closed out. that regulates emissions of the 2008 8- sections 115 and 126 of the CAA. With respect to the requirements of hour ozone NAAQS. Rule 391–3–1– Accordingly, EPA has made the section 110(a)(2)(E)(ii) pertaining the .03(1), ‘‘Construction (SIP) Permit’’ preliminary determination that state board requirements of CAA section governs the preconstruction permitting Georgia’s SIP and practices are adequate 128, Georgia’s infrastructure SIP of modifications and construction of for ensuring compliance with the submission cites Georgia Air Quality minor stationary sources. applicable requirements relating to Act Article 1: Air Quality (O.C.G.A. EPA has made the preliminary interstate and international pollution Section 12–9–5 Powers and duties of determination that Georgia’s SIP and abatement for the 2008 8-hour ozone Board of Natural Resources as to air practices are adequate for enforcement NAAQS. quality generally) which provides the of control measures and regulation of 6. 110(a)(2)(E) Adequate Resources powers and duties of the Board of minor sources and modifications related and Authority, Conflict of Interest, and Natural Resources as to air quality and to the 2008 8-hour ozone NAAQS. Oversight of Local Governments and provides that at least a majority of 4. 110(a)(2)(D)(i)(I) and (II) Interstate Regional Agencies: Section 110(a)(2)(E) members of this board represent the Pollution Transport: Section requires that each implementation plan public interest and not derive any 110(a)(2)(D)(i) has two components; provide (i) necessary assurances that the significant portion of income from 110(a)(2)(D)(i)(I) and 110(a)(2)(D)(II). State will have adequate personnel, persons subject to permits or Each of these components have two funding, and authority under state law enforcement orders and that potential subparts resulting in four distinct to carry out its implementation plan, (ii) conflicts of interest will be adequately components, commonly referred to as that the State comply with the disclosed. This provision has been ‘‘prongs,’’ that must be addressed in requirements respecting State Boards incorporated into the federally approved

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SIP. Collectively, these rules and states had to report emissions data from the superior court of the county in commitments provide evidence that GA 17 to 12 months, giving states one which the unlawful act or practice has EPD has adequate personnel, funding, calendar year to submit emissions data. been or is about to be engaged in, or in and legal authority under state law to All states are required to submit a which jurisdiction is appropriate, for an carry out the state’s implementation comprehensive emissions inventory order enjoining such act or practice or plan and related issues to ensure that every three years and report emissions for an order requiring compliance with conflicts of interest are adequately for certain larger sources annually this article. Upon a showing by the addressed. EPA has made the through EPA’s online Emissions director that such person has engaged in preliminary determination that Georgia Inventory System. States report or is about to engage in any such act or has adequate resources and authority to emissions data for the six criteria practice, a permanent or temporary satisfy sections 110(a)(2)(E)(i), (ii), and pollutants and the precursors that form injunction, restraining order, or other (iii) of the 2008 8-hour ozone NAAQS. them—NOX, sulfur dioxide, ammonia, order shall be granted without the 7. 110(a)(2)(F) Stationary Source lead, carbon monoxide, particulate necessity of showing lack of an adequate Monitoring and Reporting: Georgia’s matter, and volatile organic compounds. remedy of law.’’ O.C.G.A. Section 12– infrastructure SIP submission describes Many states also voluntarily report 19–13 specifically pertains to how the State establishes requirements emissions of hazardous air pollutants. enforcement proceedings when the for emissions compliance testing and Georgia made its latest update to the Director of EPD has reason to believe utilizes emissions sampling and 2011 NEI on June 10, 2014. EPA that a violation of any provision of the analysis. It further describes how the compiles the emissions data, Georgia Air Quality Act Article 1: Air State ensures the quality of its data supplementing it where necessary, and Quality (O.C.G.A), or environmental through observing emissions and releases it to the general public through rules, regulations or orders have monitoring operations. GA EPD uses the Web site http://www.epa.gov/ttn/ occurred. O.C.G.A. Section 12–9–14 also these data to track progress towards chief/eiinformation.html. EPA has made provides that the Governor, may issue maintaining the NAAQS, develop the preliminary determination that orders as necessary to protect the health control and maintenance strategies, Georgia’s SIP and practices are adequate of persons who are, or may be, affected identify sources and general emission for the stationary source monitoring by a pollution source or facility after levels, and determine compliance with systems obligations for the 2008 8-hour ‘‘consult[ation] with local authorities in emission regulations and additional ozone NAAQS. order to confirm the correctness of the EPA requirements. Georgia meets these information on which action proposed 8. 110(a)(2)(G) Emergency powers: requirements through the Georgia Air to be taken is based and to ascertain the This section requires that states Quality Act Article 1: Air Quality action which such authorities are or will demonstrate authority comparable with (O.C.G.A. Section 12–9–5(b)(6) Powers be taking.’’ and duties of Board of Natural section 303 of the CAA and adequate Rule 391–3–1–.04 ‘‘Air Pollution Resources as to air quality generally), contingency plans to implement such Episodes’’ provides that the Director of Rules 391–3–1–.02(3) ‘‘Sampling,’’ 391– authority. Georgia’s infrastructure SIP EPD ‘‘will proclaim that an Air 3–1–.02(6)(b) ‘‘General Monitoring and submission cites air pollution Pollution Alert, Air Pollution Warning, Reporting Requirements,’’ 391–3–1– emergency episodes and preplanned or Air Pollution Emergency exists when .02(6) ‘‘Source Monitoring,’’ 391–3–1– abatement strategies in the Georgia Air the meteorological conditions are such .02(7) ‘‘Prevention of Significant Quality Act: Article 1: Air Quality that an air stagnation condition is in Deterioration of Air Quality,’’ 391–3–1– (O.C.G.A. Sections 12–9–2 Declaration existence and/or the accumulation of air .02(11) ‘‘Compliance Assurance of public policy, 12–9–6 Powers and contaminants in any place is attaining Monitoring,’’ and, 391–3–1–.03 duties of director as to air quality or has attained levels which could, if ‘‘Permits.’’ generally, 12–9–12 Injunctive relief, 12– such levels are sustained or exceeded, In addition, Rule 391–3–1-.02(3) 9–13 Proceedings for enforcement, and lead to a substantial threat to the health ‘‘Sampling’’ 20 allows for the use of 12–9–14 Powers of director in situations of persons in the specific area affected.’’ credible evidence in the event that the involving imminent and substantial Collectively the cited provisions GA EPD Director has evidence that a danger to public health), and Rule 391– provide that Georgia EPD demonstrate source is violating an emission standard 3–1 .04 ‘‘Air Pollution Episodes.’’ authority comparable with section 303 or permit condition, the Director may O.C.G.A. Section 12–9–2 provides ‘‘[i]t of the CAA and adequate contingency require that the owner or operator of any is declared to be the public policy of the plans to implement such authority in source submit to the Director any state of Georgia to preserve, protect, and the state. EPA has made the preliminary information necessary to determine the improve air quality . . . to attain and determination that Georgia’s SIP and compliance status of the source. In maintain ambient air quality standards practices are adequate to satisfy the addition, EPA is unaware of any so as to safeguard the public health, emergency powers obligations of the provision preventing the use of credible safety, and welfare.’’ O.C.G.A. Section 2008 8-hour ozone NAAQS. evidence in the Georgia SIP. 12–9–6(b)(10) provides the Director of 9. 110(a)(2)(H) SIP revisions: GA EPD Georgia is required to submit EPD authority to ‘‘issue orders as may is responsible for adopting air quality emissions data to EPA for purposes of be necessary to enforce compliance with rules and revising SIPs as needed to the National Emissions Inventory (NEI). [the Georgia Air Quality Act Article 1: attain or maintain the NAAQS in The NEI is EPA’s central repository for Air Quality (O.C.G.A)] and all rules and Georgia. Georgia Air Quality Act: Article air emissions data. EPA published the regulations of this article.’’ O.C.G.A. 1: Air Quality (O.C.G.A. Section 12–9– Air Emissions Reporting Rule (AERR) Section 12–9–12 provides that 6(b)(12), 12–9–6(b)(13) Powers and on December 5, 2008, which modified ‘‘[w]henever in the judgment of the duties of director as to air quality the requirements for collecting and director any person has engaged in or is generally) provides Georgia the reporting air emissions data. See 73 FR about to engage in any act or practice authority to implement the CAA and 76539. The AERR shortened the time which constitutes or will constitute an submit SIP revisions whenever the unlawful action under [the Georgia Air NAAQS are revised. These provisions 20 This rule is not approved into the federally Quality Act Article 1: Air Quality also provide GA EPD the ability and approved SIP. (O.C.G.A)], he may make application to authority to respond to calls for SIP

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revisions, and Georgia has provided a EPD to consult with federal, state and Quality Models,’’ incorporates by number of SIP revisions over the years local transportation and air quality reference 40 CFR 52.21(l), which for implementation of the NAAQS. agency officials on the development of specifies that air modeling be conducted Accordingly, EPA has made the motor vehicle emissions budgets. The in accordance with 40 CFR part 51, preliminary determination that Regional Haze SIP provides for Appendix W ‘‘Guideline on Air Quality Georgia’s SIP and practices adequately consultation between appropriate state, Models.’’ This regulation demonstrates demonstrate a commitment to provide local, and tribal air pollution control that Georgia has the authority to future SIP revisions related to the 2008 agencies as well as the corresponding perform air quality modeling and to 8-hour ozone NAAQS, when necessary. Federal Land Managers. provide relevant data for the purpose of 10. 110(a)(2)(J) Consultation with Public notification (127 public predicting the effect on ambient air Government Officials, Public notification): GA EPD has public notice quality of the 2008 8-hour ozone Notification, and PSD and Visibility mechanisms in place to notify the NAAQS. Additionally, Georgia supports Protection: EPA is proposing to approve public of ozone and other pollutant a regional effort to coordinate the Georgia’s infrastructure SIP for the 2008 forecasting, including an air quality development of emissions inventories 8-hour ozone NAAQS with respect to monitoring Web site providing ground and conduct regional modeling for the general requirement in section level ozone alerts, http:// several NAAQS, including the 2008 8- 110(a)(2)(J) to include a program in the www.georgiaair.org/smogforecast/. hour ozone NAAQS, for the SIP that complies with the applicable Regulation 391–3–1–.04, ‘‘Air Pollution Southeastern states. Taken as a whole, consultation requirements of section Episodes,’’ requires that EPD notify the Georgia’s air quality regulations 121, the public notification public of any air pollution episode or demonstrate that GA EPD has the requirements of section 127, and NAAQS violation. Additionally, the authority to provide relevant data for visibility protection. With respect to Georgia SIP process affords the public the purpose of predicting the effect on Georgia’s infrastructure SIP submission an opportunity to participate in ambient air quality of the 2008 8-hour related to the preconstruction PSD regulatory and other efforts to improve ozone NAAQS. EPA has made the permitting, EPA took final action to air quality by holding public hearings preliminary determination that approve Georgia’s May 14, 2012, 2008 8- for interested persons to appear and Georgia’s SIP and practices adequately hour ozone NAAQS infrastructure SIP submit written or oral comments. demonstrate the State’s ability to for these requirements on March 18, Visibility Protection: EPA’s September provide for air quality modeling, along 2015. See 80 FR 14019. EPA’s rationale 2013 Infrastructure SIP Guidance notes with analysis of the associated data, for its proposed action regarding that EPA does not generally treat the related to the 2008 8-hour ozone applicable consultation requirements of visibility protection aspects of section NAAQS when necessary. section 121, the public notification 110(a)(2)(J) as applicable for purposes of 12. 110(a)(2)(L) Permitting fees: This requirements of section 127, and the the infrastructure SIP approval process. element necessitates that the SIP require visibility requirements is described EPA recognizes that states are subject to the owner or operator of each major below. visibility protection and regional haze stationary source to pay to the Consultation with government program requirements under Part C of permitting authority, as a condition of officials (121 consultation): Section the Act (which includes sections 169A any permit required under the CAA, a 110(a)(2)(J) of the CAA requires states to and 169B). However, in the event of the fee sufficient to cover (i) the reasonable provide a process for consultation with establishment of a new primary costs of reviewing and acting upon any local governments, designated NAAQS, the visibility protection and application for such a permit, and (ii) if organizations and federal land managers regional haze program requirements the owner or operator receives a permit (FLMs) carrying out NAAQS under part C do not change. Thus, EPA for such source, the reasonable costs of implementation requirements pursuant concludes there are no new applicable implementing and enforcing the terms to section 121 relative to consultation. visibility protection obligations under and conditions of any such permit (not Georgia Air Quality Act: Article 1: Air section 110(a)(2)(J) as a result of the including any court costs or other costs Quality (O.C.G.A. Section 12–9–5(b)(17) 2008 8-hour ozone NAAQS that need to associated with any enforcement Powers and duties of Board of Natural be addressed in Georgia’s infrastructure action), until such fee requirement is Resources as to air quality generally), SIP submission as it relates to visibility superseded with respect to such sources Georgia Administrative Procedures Act protection. by the Administrator’s approval of a fee (O.C.G.A. Section 50–13–4 Procedural EPA has made the preliminary program under title V. requirements for adoption, amendment, determination that Georgia’s SIP and To satisfy these requirements, or repeal of rules; emergency rules; practices adequately demonstrate the Georgia’s infrastructure SIP submission limitation on action to contest rule; State’s ability to provide consultation cites Rule 391–3–1–.03(9) ‘‘Permit legislative override), and Rule 391–3–1– with government officials, public Fees,’’ 21 which includes the federally .02(7) ‘‘Prevention of Significant notification related to the 2008 8-hour approved title V fee program. Deterioration (PSD)’’ as it relates to ozone NAAQS when necessary, and, as Additionally, Georgia’s PSD and NNSR Class I areas along with the Regional explained above, is sufficient for programs are funded by title V fees. Haze SIP Plan provide for consultation visibility protection for this element. Georgia’s authority to charge fees or with government officials whose 11. 110(a)(2)(K) Air Quality Modeling require funding for processing PSD and jurisdictions might be affected by SIP and Submission of Modeling Data: NNSR permits is provided for in the development activities. These Section 110(a)(2)(K) of the CAA requires Georgia Air Quality Act: Article 1: Air consultation procedures were developed that SIPs provide for performing air Quality (O.C.G.A. Section 12–9–10 in coordination with the transportation quality modeling so that effects on air Permit related fees; costs of public partners in the State and are consistent quality of emissions from NAAQS notice). Georgia’s fully approved title V with the approaches used for pollutants can be predicted and operating permit program covers the development of mobile inventories for submission of such data to the USEPA cost of implementation and enforcement SIPs. Implementation of transportation can be made. Regulation 391–3–1– conformity as outlined in the .02(7)(b)(8), ‘‘Prevention of Significant 21 This rule is not approved into the federally consultation procedures requires GA Deterioration of Air Quality (PSD)-Air approved SIP.

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of PSD and NNSR permits after they infrastructure SIP submission for the Order 13132 (64 FR 43255, August 10, have been issued. EPA has made the 2008 8-hour ozone NAAQS because 1999); preliminary determination that these aspects of the submission are • is not an economically significant Georgia’s practices adequately provide consistent with section 110 of the CAA. regulatory action based on health or for permitting fees related to the 2008 8- EPA previously acted upon Georgia’s safety risks subject to Executive Order hour ozone NAAQS, when necessary. infrastructure submission for the PSD 13045 (62 FR 19885, April 23, 1997); 13. 110(a)(2)(M) Consultation and permitting requirements for major • is not a significant regulatory action Participation by Affected Local Entities: sources of sections 110(a)(2)(C), (D)(i)(II) subject to Executive Order 13211 (66 FR This element requires states to provide prong 3 and (J) on March 18, 2015, and 28355, May 22, 2001); for consultation and participation in SIP will address prongs 1, 2, and 4 of development by local political section 110(a)(2)(D)(i)(I) and (II) in a • is not subject to requirements of subdivisions affected by the SIP. The separate action. Section 12(d) of the National Georgia Air Quality Act: Article 1: Air Technology Transfer and Advancement Quality (O.C.G.A. Section 12–9–5 VI. Statutory and Executive Order Act of 1995 (15 U.S.C. 272 note) because (b)(17) Powers and duties of Board of Reviews application of those requirements would Natural Resources as to air quality Under the CAA, the Administrator is be inconsistent with the CAA; and generally) establishes ‘‘satisfactory required to approve a SIP submission • does not provide EPA with the processes of consultation and that complies with the provisions of the discretionary authority to address, as cooperation with local governments or Act and applicable federal regulations. appropriate, disproportionate human other designated organizations of See 42 U.S.C. 7410(k); 40 CFR 52.02(a). health or environmental effects, using elected officials or federal agencies for Thus, in reviewing SIP submissions, practicable and legally permissible purposes of planning [and EPA’s role is to approve state choices, methods, under Executive Order 12898 implementation].’’ Furthermore, GA provided that they meet the criteria of (59 FR 7629, February 16, 1994). the CAA. Accordingly, this proposed EPD has demonstrated consultation In addition, the Georgia SIP is not action merely approves state law as with, and participation by, affected local approved to apply on any Indian entities through its work with local meeting federal requirements and does reservation land or in any other area political subdivisions during the not impose additional requirements where EPA or an Indian tribe has developing of its Transportation beyond those imposed by state law. For demonstrated that a tribe has Conformity SIP, and Regional Haze that reason, this proposed action: jurisdiction. In those areas of Indian Implementation Plan. EPA has made the • is not a significant regulatory action country, the rule does not have tribal preliminary determination that subject to review by the Office of implications as specified by Executive Georgia’s SIP and practices adequately Management and Budget under Order 13175 (65 FR 67249, November 9, demonstrate consultation with affected Executive Orders 12866 (58 FR 51735, 2000), nor will it impose substantial local entities related to the 2008 8-hour October 4, 1993) and 13563 (76 FR 3821, direct costs on tribal governments or ozone NAAQS, when necessary. January 21, 2011); • does not impose an information preempt tribal law. V. Proposed Action collection burden under the provisions List of Subjects in 40 CFR Part 52 With the exception of the PSD of the Paperwork Reduction Act (44 permitting requirements for major U.S.C. 3501 et seq.); Environmental protection, Air sources contained in section • is certified as not having a pollution control, Incorporation by 110(a)(2)(C), (D)(i)(II) prong 3, and (J) significant economic impact on a reference, Intergovernmental relations, and the interstate transport substantial number of small entities Nitrogen dioxide, Ozone, Reporting and requirements of section 110(a)(2)(D)(i)(I) under the Regulatory Flexibility Act (5 recordkeeping requirements, Volatile and (II) (prongs 1, 2 and 4), EPA is U.S.C. 601 et seq.); organic compounds. • proposing to approve GA EPD’s does not contain any unfunded Authority: 42 U.S.C. 7401 et seq. infrastructure SIP submission, mandate or significantly or uniquely Dated: July 6, 2015. submitted May 14, 2012, for the 2008 8- affect small governments, as described hour ozone NAAQS because it meets the in the Unfunded Mandates Reform Act Heather McTeer Toney, above described infrastructure SIP of 1995 (Pub. L. 104–4); Regional Administrator, Region 4. requirements. EPA is proposing to • does not have Federalism [FR Doc. 2015–17740 Filed 7–17–15; 8:45 am] approve these portions of Georgia’s implications as specified in Executive BILLING CODE 6560–50–P

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Notices Federal Register Vol. 80, No. 138

Monday, July 20, 2015

This section of the FEDERAL REGISTER 1400 Independence Avenue SW., STOP review in the Research, Education, and contains documents other than rules or 0321, Washington, DC 20250–0321; Economics Advisory Board Office. proposed rules that are applicable to the telephone: (202) 720–3684; fax: (202) Done at Washington, DC, this 10 day of public. Notices of hearings and investigations, 720–6199; or email: committee meetings, agency decisions and July, 2015. rulings, delegations of authority, filing of [email protected]. For additional Ann Bartuska, petitions and applications and agency information on the National Deputy Under Secretary, Research, statements of organization and functions are Agricultural Research, Extension, Education, and Economics. examples of documents appearing in this Education, and Economics Advisory [FR Doc. 2015–17708 Filed 7–17–15; 8:45 am] section. Board, visit http:// BILLING CODE 3410–03–P nareeeab.ree.usda.gov/.

DEPARTMENT OF AGRICULTURE SUPPLEMENTARY INFORMATION: On Tuesday, August 11, 2015, at 2 p.m. DEPARTMENT OF AGRICULTURE Eastern Daylight Time, a virtual meeting Office of the Secretary Submission for OMB Review; of the National Agricultural Research, Comment Request Meeting Notice of the National Extension, Education, and Economics Agricultural Research, Extension, Advisory Board will be conducted to July 14, 2015. Education, and Economics Advisory hear the summary of findings and The Department of Agriculture has Board recommendations from the Animal submitted the following information AGENCY: Research, Education, and Handling and Welfare Review Panel’s collection requirement(s) to OMB for Economics, USDA. Phase II report on the research animal review and clearance under the care and well-being policies, ACTION: Notice of meeting. Paperwork Reduction Act of 1995, procedures, and standards at the Public Law 104–13. Comments SUMMARY: In accordance with the Agricultural Research Service. The regarding (a) whether the collection of Federal Advisory Committee Act, 5 National Agricultural Research, information is necessary for the proper U.S.C. App 2, Section 1408 of the Extension, Education, and Economics performance of the functions of the National Agricultural Research, Advisory Board will provide additional agency, including whether the Extension, and Teaching Policy Act of advice and recommendations to USDA information will have practical utility; 1977 (7 U.S.C. 3123), and the on the report and hear stakeholder input (b) the accuracy of the agency’s estimate Agricultural Act of 2014, the United received at this meeting, as well as, of burden including the validity of the States Department of Agriculture other written comments. The report, methodology and assumptions used; (c) (USDA) announces an open virtual entitled Findings and ways to enhance the quality, utility and meeting of the National Agricultural Recommendations on the Phase II clarity of the information to be Research, Extension, Education, and Review of the Animal Care and Well- collected; (d) ways to minimize the Economics Advisory Board. Being at the Agricultural Research burden of the collection of information DATES: The National Agricultural Service to the Research, Education, and on those who are to respond, including Research, Extension, Education, and Economics Under Secretary, is available through the use of appropriate Economics Advisory Board will meet at www.ree.usda.gov. automated, electronic, mechanical, or via teleconference on August 11, 2015, This meeting is open to the public other technological collection at 2 p.m. Eastern Daylight Time. and any interested individuals wishing techniques or other forms of information ADDRESSES: The meeting will take place to attend. Opportunity for verbal public technology should be addressed to: Desk virtually at the AT&T Meeting Room comment will be offered on the day of Officer for Agriculture, Office of below. Please follow the pre-registration the meeting. Written comments by Information and Regulatory Affairs, instructions to ensure your participation attendees or other interested Office of Management and Budget in the meeting. Call-In instructions for stakeholders will be welcomed for the (OMB), Tuesday, August 11, 2015, at 2:00 p.m. public record before and up to the day [email protected] or Eastern Daylight Time: Web of the meeting (by close of business fax (202) 395–5806 and to Departmental Preregistration: Participants may Tuesday, August 11, 2015). All written Clearance Office, USDA, OCIO, Mail preregister for this teleconference at statements must be sent to Michele Stop 7602, Washington, DC 20250– http://emsp.intellor.com?p=420632& Esch, Designated Federal Officer and 7602. Comments regarding these do=register&t=8. Once the participant Executive Director, National information collections are best assured registers, a confirmation page will Agricultural Research, Extension, of having their full effect if received by display dial-in numbers and a unique Education, and Economics Advisory August 19, 2015. Copies of the PIN, and the participant will also Board, U.S. Department of Agriculture, submission(s) may be obtained by receive an email confirmation of this 1400 Independence Avenue SW., STOP calling (202) 720–8958 or (202) 720– information. 0321, Washington, DC 20250–0321; or 8681. FOR FURTHER INFORMATION CONTACT: email: [email protected]. All An agency may not conduct or Michele Esch, Designated Federal statements will become a part of the sponsor a collection of information Officer and Executive Director, National official record of the National unless the collection of information Agricultural Research, Extension, Agricultural Research, Extension, displays a currently valid OMB control Education, and Economics Advisory Education, and Economics Advisory number and the agency informs Board, U.S. Department of Agriculture, Board and will be kept on file for public potential persons who are to respond to

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the collection of information that such DEPARTMENT OF AGRICULTURE Utilities Service, 1400 Independence persons are not required to respond to Avenue SW., STOP 1522, Room 5164, the collection of information unless it Rural Utilities Service South Building, Washington, DC 20250– displays a currently valid OMB control 1522. Telephone: (202) 690–4492. Fax: Information Collection Activity; number. (202) 720–8435 or email Comment Request [email protected]. Office of the Chief Financial Officer AGENCY: Rural Utilities Service, USDA. Title: Borrower Investments— Title: Suspension and Debarment and ACTION: Notice and request for Telecommunications Loan Program, 7 Drug-Free Workplace Certifications. comments. CFR 1744, Subpart E. OMB Control Number: 0505—New. SUMMARY: In accordance with the OMB Control Number: 0572–0098. Summary of Collection: Suspension Paperwork Reduction Act of 1995 (44 Type of Request: Extension of a and debarment is a discretionary or U.S.C. chapter 35, as amended), the currently approved collection. statutory administrative action taken by United States Department of Agriculture Abstract: The Rural Economic Federal agencies to protect the (USDA) Rural Utilities Service (RUS) Development Act of 1990, Title XXIII of invites comments on the following government by excluding person and the Farm Bill, Public Law 101–624, information collections for which the entities that are not presently authorized qualified Rural Utilities RUS intends to request approval from responsible from participating in Service (RUS) borrowers to make Federal programs or activities. The the Office of Management and Budget (OMB). investments in rural development information will be collected by USDA projects without the prior approval of Federal financial assistance agencies as DATES: Comments on this notice must be the Agency’s Administrator provided certifying information concerning received by September 18, 2015. that such investments do not cause the applicant suitability in compliance with FOR FURTHER INFORMATION CONTACT: borrower to exceed its allowable Federal Suspension and Debarment and Thomas P. Dickson, Acting Director, qualified investment level as Drug-Free Work Place regulations, as Program Development and Regulatory determined in accordance with the defined by 2 CFR parts 180, 417 and Analysis, USDA Rural Utilities Service, procedures set forth in 7 CFR part 1744, Public Law 100–690, Title V, Subtitle D; 1400 Independence Avenue SW., STOP subpart E. When a borrower exceeds 41 U.S.C., 8101 et seq., 2 CFR parts 182 1522, Room 5164, South Building, these limits, the security for the and 421. Washington, DC 20250–1522. Government’s loans could be in Need and Use of the Information: The Telephone: (202) 690–4492. Fax: (202) jeopardy. However, in the interest of 720–8435 or email Thomas.Dickson@ information will be collected using the encouraging rural development, RUS wdc.usda.gov. following Forms: AD–1047, Certification will consider approving such Regarding Debarment, Suspension, and SUPPLEMENTARY INFORMATION: The Office investments that exceed a borrower’s Other Responsibility Matters Primary of Management and Budget’s (OMB) qualified investment level. This Covered Transaction; AD–1048, regulation (5 CFR 1320) implementing information collection covers those Certification Regarding Debarment, provisions of the Paperwork Reduction items that a borrower would need to Suspension, Ineligibility and Voluntary Act of 1995 (Pub. L. 104–13) requires submit to RUS for consideration of the Exclusion Lower Tier Covered that interested members of the public borrower’s request to make such an Transactions; AD–1049, Certification and affected agencies have an investment. Regarding Drug-Free Workplace opportunity to comment on information collection and recordkeeping activities Estimate of Burden: Public reporting Requirements (Grants) Alternative I— burden for this collection of information For Grantees Other than Individuals; [see 5 CFR 1320.8(d)]. This notice identifies information collections that is estimated to average 1 hour per AD–1050, Certification Regarding Drug- USDA Rural Development is submitting response. Free Workplace Requirements (Grants) to OMB for extension. Respondents: Not for profit Alternative II—For Grantees Who Are Comments are invited on: (a) Whether Individuals; AD–1052, Certification institutions; business or other for-profit this collection of information is entities. Regarding Drug-Free Workplace State necessary for the proper performance of and State Agencies, Federal Fiscal Year. the functions of the agency, including Estimated Number of Respondents: 2. Description of Respondents: whether the information will have Estimated Number of Responses per Individuals or household; Business or practical utility; (b) the accuracy of the Respondent: 1. other for-profit; Not-for-profit agency’s estimate of the burden of the Estimated Total Annual Burden on institutions; Federal Government; State, collection of information including the Respondents: 1 hour. Local or Tribal Government. validity of the methodology and assumptions used; (c) ways to enhance All responses to this notice will be Number of Respondents: 1. the quality, utility, and clarity of the summarized and included in the request Frequency of Responses: Reporting: information to be collected; and (d) for OMB approval. All comments will One time. ways to minimize the burden of the also become a matter of public record. Total Burden Hours: 1. collection of information on Dated: July 10, 2015. respondents, including through the use Brandon McBride, Ruth Brown, of appropriate automated, electronic, Administrator, Rural Utilities Service. Departmental Information Collection mechanical or other technological Clearance Officer. collection techniques or other forms of [FR Doc. 2015–17673 Filed 7–17–15; 8:45 am] [FR Doc. 2015–17671 Filed 7–17–15; 8:45 am] information technology. Comments may BILLING CODE 3410–15–P BILLING CODE 3410–KS–P be sent to Thomas P. Dickson, Acting Director, Program Development and Regulatory Analysis, USDA Rural

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U.S. DEPARTMENT OF COMMERCE 21013, U.S. Department of Commerce, Thai Plastic Bags as the result of a 1401 Constitution Avenue NW., section 129 proceeding.2 Foreign-Trade Zones Board Washington, DC 20230–0002, and in the On June 4, 2015, TPBI requested that [B–45–2015] ‘‘Reading Room’’ section of the Board’s the Department initiate an expedited Web site, which is accessible via changed circumstances review to Foreign-Trade Zone (FTZ) 277— www.trade.gov/ftz. confirm that TPBI is the successor-in- Western Maricopa County, Arizona; For further information, contact interest to Thai Plastic Bags for Notification of Proposed Production Elizabeth Whiteman at purposes of determining antidumping Activity;The Cookson Company, Inc. [email protected] or (202) duty liabilities.3 The petitioner supports (Rolling Steel Doors); Goodyear, 482–0473. TPBI’s request for this changed 4 Arizona Dated: July 15, 2015. circumstances review. We received no comments opposing TPBI’s request. The Cookson Company, Inc. Andrew McGilvray, (Cookson) submitted a notification of Executive Secretary. Scope of the Order proposed production activity to the FTZ [FR Doc. 2015–17749 Filed 7–17–15; 8:45 am] The merchandise subject to the order Board for its facility in Goodyear, BILLING CODE 3510–DS–P includes PRCBs from the Thailand. Arizona within FTZ 277. The PRCBs are currently classifiable under notification conforming to the Harmonized Tariff Schedule of the requirements of the regulations of the DEPARTMENT OF COMMERCE United States (HTSUS) subheading FTZ Board (15 CFR 400.22) was International Trade Administration 3923.21.0085. Although the HTSUS received on July 13, 2015. subheadings are provided for The Cookson facility is located within convenience and customs purposes, the Site 11 of FTZ 277. The facility is used [A–549–821] written product description is for the assembly and production of dispositive.5 rolling steel doors. Pursuant to 15 CFR Polyethylene Retail Carrier Bags From 400.14(b), FTZ activity would be limited Thailand: Notice of Initiation and Methodology to the specific foreign-status materials Preliminary Results of Antidumping In making a successor-in-interest and components and specific finished Duty Changed Circumstances Review determination, the Department typically products described in the submitted examines several factors including, but notification (as described below) and AGENCY: Enforcement and Compliance, not limited to, changes in: (1) subsequently authorized by the FTZ International Trade Administration, Management; (2) production facilities; Board. Department of Commerce. (3) supplier relationships; and (4) Production under FTZ procedures SUMMARY: The Department of Commerce 6 could exempt Cookson from customs customer base. While no single factor (the Department) preliminarily or combination of factors will duty payments on the foreign status determines that TPBI Public Company components used in export production. necessarily be dispositive, the Limited (TPBI) is the successor-in- Department generally will consider the On its domestic sales, Cookson would interest to Thai Plastic Bags Industries be able to choose the duty rates during new company to be the successor to the Company Limited (Thai Plastic Bags) for predecessor if the resulting operations customs entry procedures that apply to purposes of the antidumping duty order rolling steel doors (duty-free) for the of the successor are essentially the same on polyethylene retail carrier bags as those of its predecessor.7 Thus, if the foreign status inputs noted below. (PRCBs) from Thailand and, as such, Customs duties also could possibly be will be entitled to Thai Plastic Bags’s deferred or reduced on foreign status 2 See Notice of Implementation of Determination exclusion from the antidumping duty Under Section 129 of the Uruguay Round production equipment. order. We invite interested parties to Agreements Act and Partial Revocation of the The components and materials comment on these preliminary results. Antidumping Duty Order on Polyethylene Retail sourced from abroad include: hand and Carrier Bags From Thailand, 75 FR 48940 (August roller steel chains; limit switches; DATES: Effective: July 20, 2015. 12, 2010). 3 single-phase AC electric motors/gear FOR FURTHER INFORMATION CONTACT: See Letter from TPBI to the Department, ‘‘Polyethylene Retail Carrier Bags (PRCBs) from motors; multi-phase AC electric motors/ Thomas Schauer, AD/CVD Operations, Thailand: Request for Expedited Changed gear motors; steel cranks; motor Office I, Enforcement and Compliance, Circumstances Review’’ (June 4, 2015) (CCR overload protectors; mounted and International Trade Administration, Request). unmounted timers for door closure Department of Commerce, 14th Street 4 Id., at Exhibit 9. assemblies; power boards; transformers and Constitution Avenue NW., 5 For a complete description of the Scope of the Order, see Memorandum to Paul Piquado, Assistant (40VA or greater); electro-mechanical Washington, DC 20230; telephone: (202) Secretary for Enforcement and Compliance, from alarm interfaces; fire door testing 482–0410. Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, releases and converter mechanisms; SUPPLEMENTARY INFORMATION: steel door limits; contactors; battery entitled ‘‘Antidumping Duty Order on Polyethylene Background Retail Carrier Bags from Thailand: Decision backups; and, steel bolts (duty rate Memorandum for the Initiation and Preliminary ranges from duty-free to 6.6%). On June 18, 2004, the Department Results of Antidumping Duty Changed Circumstances Review Requested by TPBI Public Public comment is invited from published the Order on PRCBs from interested parties. Submissions shall be Company Limited ’’ dated concurrently with this Thailand.1 On August 12, 2010, the notice and hereby adopted by this notice addressed to the Board’s Executive Department revoked the Order on (Preliminary Decision Memorandum). Secretary at the address below. The PRCBs from Thailand with respect to 6 See, e.g., Certain Activated Carbon From the closing period for their receipt is August PRCBs manufactured and exported by People’s Republic of China: Notice of Initiation of 31, 2015. Changed Circumstances Review, 74 FR 19934, A copy of the notification will be 19935 (April 30, 2009). 1 See Notice of Final Determination of Sales at 7 See, e.g., Notice of Initiation of Antidumping available for public inspection at the Less Than Fair Value: Polyethylene Retail Carrier Duty Changed Circumstances Review: Certain Office of the Executive Secretary, Bags from Thailand, 69 FR 34122 (June 18, 2004) Forged Stainless Steel Flanges from India, 71 FR Foreign-Trade Zones Board, Room (Order). 327 (January 4, 2006).

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record demonstrates that, with respect 351.310(c), interested parties who wish DEPARTMENT OF COMMERCE to the production and sale of the subject to request a hearing, or to participate if merchandise, the new company one is requested, must submit a written National Oceanic and Atmospheric operates as the same business entity as request to the Assistant Secretary for Administration the predecessor company, the Enforcement and Compliance, U.S. RIN 0648–XE012 Department may assign the new Department of Commerce. All company the cash deposit rate of its documents must be filed electronically Fisheries of the South Atlantic; predecessor.8 For a full description of using Enforcement and Compliance’s Southeast Data, Assessment and the methodology underlying our Antidumping and Countervailing Duty Review (SEDAR); Public Meetings conclusions, see the Preliminary Centralized Electronic Service System Decision Memorandum. A list of topics (ACCESS).12 An electronically-filed AGENCY: National Marine Fisheries discussed in the Preliminary Decision request must be received successfully in Service (NMFS), National Oceanic and Memorandum is included as Appendix its entirety by ACCESS by 5:00 p.m. Atmospheric Administration (NOAA), I of this notice. Eastern Time, within 30 days after the Commerce. date of publication of this notice.13 ACTION: Notice of SEDAR 41 Data Initiation and Preliminary Results of Workshop II for South Atlantic red the Changed Circumstances Review Requests should contain: (1) The party’s name, address, and telephone number; snapper and gray triggerfish. Pursuant to section 751(b)(1) of the (2) the number of participants; and (3) Act and 19 CFR 351.216(d), the SUMMARY: The SEDAR 41 assessments of a list of issues to be discussed. Issues the South Atlantic stocks of red snapper Department will conduct a changed raised in the hearing will be limited to circumstances review (CCR) upon (Lutjanus campechanus) and gray those raised in the respective case triggerfish (Balistes capriscus) will receipt of a request from an interested briefs. party or receipt of information consist of: Data Workshops; an concerning an antidumping duty order In accordance with 19 CFR Assessment Workshop; and a Review which shows changed circumstances 351.216(e), the Department intends to Workshop. See SUPPLEMENTARY sufficient to warrant a review of the issue the final results of this changed INFORMATION. order. Section 351.221(c)(3)(ii) of the circumstance review not later than 270 DATES: The SEDAR 41 Data Workshop II Department’s regulations permits the days after the date on which the review will be held on August 4, 2015, from Department to combine the initiation is initiated, or within 45 days if all 8:30 a.m. until 6 p.m.; August 5, 2015, and preliminary results of a CCR if the parties agree to our preliminary finding. from 8 a.m. until 6 p.m.; and August 6, Department concludes that expedited Notification to Interested Parties 2015, from 8 a.m. until 1 p.m. The action is warranted. In this instance, we established times may be adjusted as have information on the record This notice is issued and published in necessary to accommodate the timely necessary to reach the preliminary accordance with sections 751(b) and completion of discussion relevant to the results of CCR. As such, we find that 777(i)(1) of the Act, and 19 CFR 351.216 assessment process. Such adjustments expedited action is warranted. and 351.221(c)(3)(ii). may result in the meeting being Accordingly, we have combined the Dated: July 14, 2015. extended from, or completed prior to preliminary results with the initiation. the time established by this notice. The Paul Piquado, We preliminarily determine that TPBI Assessment Workshop and Review is the successor-in-interest to Thai Assistant Secretary for Enforcement and Workshop dates and times will publish Plastic Bags for the purposes of Compliance. in a subsequent issue in the Federal administering the Order and its Appendix I Register. See SUPPLEMENTARY revocation with respect to Thai Plastic INFORMATION. Bags. The Preliminary Decision List of Topics Discussed in the Preliminary Memorandum provides a full Decision Memorandum ADDRESSES: The SEDAR 41 Data Workshop will be held at the Charleston description of the analysis underlying I. Summary Marriott, 170 Lockwood Boulevard, our conclusions. II. Background Charleston, SC 29403; phone: (843) 732– Public Comment III. Scope of the Order IV. Successor-in-Interest Analysis 3000. SEDAR address: 4055 Faber Place Interested parties may submit case A. Analytical Framework Drive, Suite 201, North Charleston, SC briefs no later than 30 days after the B. Relevant Facts date of publication of this notice.9 1. Management 29405. Rebuttal briefs, limited to issues raised 2. Production Facilities FOR FURTHER INFORMATION CONTACT: Julia in the case briefs, may be filed not later 3. Customer Base Byrd, SEDAR Coordinator; phone: (843) than five days after the date for filing 4. Suppliers 571–4366; email: [email protected]. case briefs.10 Parties who submit case C. Analysis SUPPLEMENTARY INFORMATION: The Gulf briefs or rebuttal briefs in this 1. Time Period of Mexico, South Atlantic, and proceeding are encouraged to submit 2. Successorship Analysis Caribbean Fishery Management with each argument: (1) A statement of a. Management Councils, in conjunction with NOAA the issue; (2) a brief summary of the b. Production Facilities Fisheries and the Atlantic and Gulf argument; and (3) a table of c. Customer Base States Marine Fisheries Commissions authorities.11 Pursuant to 19 CFR d. Suppliers have implemented the Southeast Data, V. Recommendation Assessment and Review (SEDAR) 8 See, e.g., Fresh and Chilled Atlantic Salmon [FR Doc. 2015–17732 Filed 7–17–15; 8:45 am] process, a multi-step method for From Norway; Final Results of Changed determining the status of fish stocks in Circumstances Antidumping Duty Administrative BILLING CODE 3510–DS–P Review, 64 FR 9979, 9980 (March 1, 1999). the Southeast Region. SEDAR is a three 9 See 19 CFR 351.309(c)(1)(ii). 12 ACCESS is available to registered users at step process including: (1) Data 10 See 19 CFR 351.309(d). http://access.trade.gov. Workshop(s); (2) Assessment Process 11 See 19 CFR 351.309(c)(2) and (d)(2). 13 See 19 CFR 351.310(c). utilizing workshops and webinars; and

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(3) Review Workshop. The product of office (see ADDRESSES) at least 10 the scope of alternatives or the Data Workshop(s) is a data report business days prior to the meeting. environmental consequences considered which compiles and evaluates potential Note: The times and sequence specified in in the PEIS will require additional datasets and recommends which this agenda are subject to change. analysis under the National datasets are appropriate for assessment Environmental Policy Act (NEPA). analyses. The product of the Assessment Authority: 16 U.S.C. 1801 et seq. The ROD documents the decision by Process is a stock assessment report Dated: July 15, 2015. NOAA to select and implement the which describes the fisheries, evaluates Tracey L. Thompson, ‘‘Current Management’’ alternative as its the status of the stock, estimates preferred alternative. The alternative Acting Deputy Director, Office of Sustainable represents a comprehensive biological benchmarks, projects future Fisheries, National Marine Fisheries Service. population conditions, and recommends programmatic restoration approach that [FR Doc. 2015–17722 Filed 7–17–15; 8:45 am] research and monitoring needs. The includes funding or conducting assessment is independently peer BILLING CODE 3510–22–P activities such as providing technical reviewed at the Review Workshop. The assistance; on-the-ground riverine and coastal habitat restoration activities product of the Review Workshop is a DEPARTMENT OF COMMERCE Summary documenting panel opinions (including but not limited to: Fish regarding the strengths and weaknesses National Oceanic and Atmospheric passage projects; channel, bank, and of the stock assessment and input data. Administration floodplain restoration; buffer area and Participants for SEDAR Workshops are watershed revegetation; salt marsh appointed by the Gulf of Mexico, South RIN 0648–XD983 restoration; oyster restoration; marine Atlantic, and Caribbean Fishery debris removal; submerged aquatic Record of Decision for the Final NOAA Management Councils, the Atlantic and vegetation planting; invasive species Restoration Center Programmatic Gulf States Marine Fisheries removal; and coral restoration); and Environmental Impact Statement Commissions and NOAA Fisheries habitat conservation transactions. Southeast Regional Office and Southeast AGENCY: National Marine Fisheries Because this is a continuation of NOAA Fisheries Science Center. Participants Service (NMFS), National Oceanic and Restoration Center’s (RC) on-going include: data collectors and database Atmospheric Administration (NOAA), restoration programs with no change in managers; stock assessment scientists, Commerce. management direction, it was also biologists, and researchers; constituency ACTION: Notice of availability of a considered to be the ‘‘No Action’’ representatives including fishermen, Record of Decision. alternative. environmentalists, and non- The NOAA RC is not soliciting governmental organizations (NGOs); SUMMARY: The NOAA National Marine comments on the PEIS but will consider international experts; and staff of Fisheries Service (NMFS) announces the any comments submitted that would Councils, Commissions, and state and availability of the Record of Decision assist us in preparing future NEPA federal agencies. (ROD) for the Final NOAA Restoration documents. An electronic copy of the An assessment data set and associated Center Programmatic Environmental PEIS is available at: http:// documentation will be developed Impact Statement. The NMFS Office of www.restoration.noaa.gov/ during the Data Workshops. Participants Habitat Conservation Director signed the environmentalcompliance. Electronic will evaluate available data and select ROD on July 20, 2015, which constitutes correspondence regarding it can be appropriate sources for providing the agency’s final decision. submitted to [email protected]. information on life history ADDRESSES: Frederick C. Sutter, Otherwise, please submit any written characteristics, catch statistics, discard Director, Office of Habitat Conservation, comments via U.S. mail to the estimates, length and age composition, National Oceanic and Atmospheric responsible official named in the and fishery independent and fishery Administration, 1315 East-West ADDRESSES section. dependent measures of stock Highway, Silver Spring, MD 20910. Dated: July 15, 2015. abundance, as specified in the Terms of FOR FURTHER INFORMATION CONTACT: Frederick C. Sutter, Reference for the workshop. This Melanie Gange, by mail at NOAA workshop will build on the work and Director, Office of Habitat Conservation, Restoration Center/FHC3, 1315 East- National Marine Fisheries Service. decisions made at the 2014 SEDAR 41 West Highway, Silver Spring, MD [FR Doc. 2015–17739 Filed 7–17–15; 8:45 am] Data Workshop. 20910; or by telephone at 301–427– Although non-emergency issues not BILLING CODE 3510–22–P 8664. contained in this agenda may come before this group for discussion, those SUPPLEMENTARY INFORMATION: The PEIS DEPARTMENT OF COMMERCE issues may not be the subject of formal evaluated broad issues and programmatic-level alternatives action during this meeting. Action will National Oceanic and Atmospheric (compared to a document for a specific be restricted to those issues specifically Administration identified in this notice and any issues project or action) for future restoration arising after publication of this notice activities to be carried out by NOAA. In RIN 0648–XE033 that require emergency action under addition to providing a programmatic North Pacific Fishery Management section 305(c) of the Magnuson-Stevens analysis, NOAA intends to use this Council; Public Meeting Fishery Conservation and Management document to approve future site-specific Act, provided the public has been actions, including grant actions, as long AGENCY: National Marine Fisheries notified of the intent to take final action as the activity being proposed is within Service (NMFS), National Oceanic and to address the emergency. the range of alternatives and scope of Atmospheric Administration (NOAA), potential environmental consequences Special Accommodations Commerce. described in the PEIS, and does not ACTION: Notice of a public meeting. This meeting is accessible to people have significant adverse impacts. Any with disabilities. Requests for auxiliary future site-specific restoration activities SUMMARY: The North Pacific Fishery aids should be directed to the SEDAR proposed by NOAA that are not within Management Council’s (Council)

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Ecosystem Committee will meet in fishing year so they can calculate the to NMFS on or before July 31, in the Juneau, AK. required payment for cost recovery fees year following the crab fishing year in DATES: The meeting will be held August that must be submitted by July 31, 2016. which landings of crab were made. 6–7, 2015, from 8 a.m. to 5 p.m. DATES: The Crab Rationalization The dollar amount of the fee due is ADDRESSES: The meeting will be held at Program Registered Crab Receiver determined by multiplying the fee the Ted Stevens Marine Research permit holder is responsible for percentage (not to exceed 3 percent) by Institute, Auke Bay Laboratories, 17109 submitting the fee liability payment to the ex-vessel value of crab debited from Pt. Lena Loop Road, Juneau, AK 99801. NMFS on or before July 31, 2016. the allocation. Specific details on the Council address: North Pacific FOR FURTHER INFORMATION CONTACT: Program’s cost recovery provision may Fishery Management Council, 605 W. Keeley Kent, 907–586–7228. be found in the implementing 4th Ave., Suite 306, Anchorage, AK SUPPLEMENTARY INFORMATION: regulations at 50 CFR 680.44. 99501–2252. Fee Percentage FOR FURTHER INFORMATION CONTACT: Background Steve MacLean, Council staff; phone: NMFS Alaska Region administers the Each year, NMFS calculates and (907) 271–2809. Bering Sea and Aleutian Islands Crab publishes in the Federal Register the fee SUPPLEMENTARY INFORMATION: The Rationalization Program (Program) in percentage according to the factors and purpose of the Ecosystem Committee is the North Pacific. Fishing under the methodology described in Federal to review progress on development of a Program began on August 15, 2005. regulations at § 680.44(c)(2). The strawman Fishery Ecosystem Plan (FEP) Regulations implementing the Program formula for determining the fee Module, and development of a can be found at 50 CFR part 680. percentage is the ‘‘direct program costs’’ discussion paper planned for The Program is a limited access divided by ‘‘value of the fishery,’’ where presentation to the Council in system authorized by section 313(j) of ‘‘direct program costs’’ are the direct December, 2015. The Committee will the Magnuson-Stevens Fishery program costs for the Program for the also discuss scheduling for future Conservation and Management Act previous fiscal year, and ‘‘value of the meetings. The Agenda is subject to (Magnuson-Stevens Act). The Program fishery’’ is the ex-vessel value of the change, and the latest version will be includes a cost recovery provision to catch subject to the crab cost recovery posted at http://www.npfmc.org/. collect fees to recover the actual costs fee liability for the current year. Fee directly related to the management, data collections for any given year may be Special Accommodations collection, and enforcement of the less than, or greater than, the actual The meeting is physically accessible Program. NMFS developed the cost costs and fishery value for that year, to people with disabilities. Requests for recovery provision to conform to because, by regulation, the fee sign language interpretation or other statutory requirements and to partially percentage is established in the first auxiliary aids should be directed to reimburse the agency for the actual costs quarter of a crab fishery year based on Shannon Gleason at (907) 271–2809 at directly related to the management, data the fishery value and the costs of the least 7 working days prior to the collection, and enforcement of the prior year. meeting date. Program. Section 313(j) of the Based upon the fee percentage Dated: July 15, 2015. Magnuson-Stevens Act provided formula described above, the estimated supplementary authority to section Tracey L. Thompson, percentage of costs to value for the 304(d)(2)(A) and additional detail for 2014/2015 fishery was 1.48 percent. Acting Deputy Director, Office of Sustainable cost recovery provisions specific to the Fisheries, National Marine Fisheries Service. Therefore, the fee percentage will be Program. The cost recovery provision 1.48 percent for the 2015/2016 crab [FR Doc. 2015–17723 Filed 7–17–15; 8:45 am] allows collection of 133 percent of the fishing year. This is an increase of 0.83 BILLING CODE 3510–22–P actual management, data collection, and percent from the 2013/2014 fee enforcement costs up to 3 percent of the percentage of 0.65 percent (79 FR 44403, ex-vessel value of crab harvested under DEPARTMENT OF COMMERCE July 31, 2014). The change in the fee the Program. Additionally, section percentage from 2013/2014 to 2014/ National Oceanic and Atmospheric 313(j) requires the harvesting and 2015 is due to an increase in NMFS Administration processing sectors to each pay half the management costs. These additional cost recovery fees. Catcher/processor costs were necessary to maintain and RIN 0648–XE019 quota shareholders are required to pay upgrade NMFS’ permitting systems and the full fee percentage for crab Fisheries of the Exclusive Economic the Internet-based crab landings system processed at sea. Zone Off Alaska; Bering Sea and used for the program. The value of crab A crab allocation holder generally harvested under the Program also Aleutian Islands Crab Rationalization incurs a cost recovery fee liability for Cost Recovery Program increased from 2013/2014 to 2014/2015 every pound of crab landed. The crab by $29 million. This increase in value AGENCY: National Marine Fisheries allocations include Individual Fishing of the fishery offset some of the Service (NMFS), National Oceanic and Quota, Crew Individual Fishing Quota, management cost increases and so Atmospheric Administration (NOAA), Individual Processing Quota, limited the change in the fee percentage Commerce. Community Development Quota, and between 2013/2014 and 2014/2015. the Adak community allocation. The ACTION: Notification of fee percentage. Authority: 16 U.S.C. 1862; Pub. L. 109– Registered Crab Receiver (RCR) permit 241; Pub. L. 109–479. SUMMARY: NMFS publishes notification holder must collect the fee liability from of a 1.48 percent fee for cost recovery the crab allocation holder who is Dated: July 14, 2015. under the Bering Sea and Aleutian landing crab. Additionally, the RCR Emily H. Menashes, Islands Crab Rationalization Program. permit holder must collect his or her Acting Director, Office of Sustainable This action is intended to provide own fee liability for all crab delivered to Fisheries, National Marine Fisheries Service. holders of crab allocations with the fee the RCR. The RCR permit holder is [FR Doc. 2015–17639 Filed 7–17–15; 8:45 am] percentage for the 2015/2016 crab responsible for submitting this payment BILLING CODE 3510–22–P

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DEPARTMENT OF COMMERCE August 10 (N. Charleston, SC), August Midway Ave., Daytona Beach, FL 32114; 12 (Murrells Inlet, SC), August 13 phone: (386) 944–4000. National Oceanic and Atmospheric (Morehead City, NC), August 18 Snapper Grouper Regulatory Administration (Webinar hearing), August 24 Amendment 16 RIN 0648–XE058 (Brunswick, GA), and August 25 (Daytona Beach, FL). The Question and Snapper Grouper Regulatory Fisheries of the South Atlantic; South Answer Webinar for Snapper Grouper Amendment 16 has two actions. The Atlantic Fishery Management Council; Amendment 36 will be on Monday, first action is to consider options for Public Hearings August 5, 2015. opening the commercial South Atlantic black sea bass pot fishery from AGENCY: National Marine Fisheries Snapper Grouper Regulatory November 1 through April 30 while still Service (NMFS), National Oceanic and Amendment 16 (black sea bass pots) providing protection for ESA listed Atmospheric Administration (NOAA), The Q&A Session for Regulatory whales during that period. The second Commerce. Amendment 16 will begin at 6 p.m. on action has alternatives that would ACTION: Notice of public hearings. Monday, August 3, 2015. Registration is require modifications to black sea bass required and registration information pot gear such as reducing buoy line and SUMMARY: The South Atlantic Fishery will be posted on the Council’s Web site weak link strength, as well as require Management Council (Council) will at www.safmc.net as it becomes markings that would identify gear as hold public hearings in North Carolina, available. being specific to the South Atlantic South Carolina and Florida and a Public Hearings for Snapper Grouper black sea bass pot fishery. Background Question and Answer Webinar for Regulatory Amendment 16 begin at 4 information regarding Snapper Grouper Regulatory Amendment 16 to the p.m. in the following locations: Regulatory Amendment 16, including a Snapper Grouper Fishery Management 1. August 11, 2015: Holiday Inn public hearing draft of the document, a Plan for the South Atlantic. The Council Express, 722 Highway 17, Little River, document summary, and a PowerPoint will also hold public hearings in North SC 29566; phone: (843) 281–9400. presentation will be posted to the South Carolina, South Carolina, Georgia, and 2. August 12, 2015: Comfort Suites, Atlantic Fishery Management Council’s Florida and a Question and Answer 130 Workshop Lane, Jacksonville, NC Web site www.safmc.net no later than 5 Webinar for Amendment 36 to the 28546; phone: (910) 346–8900. p.m. on July 30, 2015. In addition to Snapper Grouper Fishery Management 3. August 17, 2015: Hull’s Seafood making public comments in person, Plan for the South Atlantic. See Market/Restaurant, 111 West Granada interested persons can make comments SUPPLEMENTARY INFORMATION. Blvd., Ormond Beach, FL 32174; phone: via email or U.S. mail no later than 5 DATES: The public hearings will be held (386) 677–1511. p.m. on August 21, 2015. Email between August 10 and August 25, comments may be sent to: Mike.Collins@ Snapper Grouper Amendment 36 safmc.net. Please include the words 2015. There will be a question and (Spawning SMZs) answer webinar on August 3 and August ‘‘Regulatory Amendment 16’’ in the 5, 2015. Please see SUPPLEMENTARY The Q&A Session for Snapper subject line of the email. Comments INFORMATION for specific details. Grouper Amendment 36 will begin at 6 submitted by U.S. mail should be sent to: Robert K. Mahood, Executive ADDRESSES: The hearings for Snapper p.m. on Monday, August 5, 2015. Grouper Regulatory Amendment 16 will Registration is required and registration Director, South Atlantic Fishery Management Council, 4055 Faber Place be held in Little River, SC, Jacksonville, information will be posted on the Drive, Suite 201, North Charleston, SC NC, Ormond Beach, FL. The hearings Council’s Web site at www.safmc.net as 29405. for Snapper Grouper Amendment 36 is becomes available. will be held in North Charleston, SC, Public Hearings for Snapper Grouper Snapper Grouper Amendment 36 Amendment 36 begin at 4 p.m. in the Murrells Inlet, SC, Morehead City, NC, Snapper Grouper Amendment 36 has Brunswick, GA and Daytona Beach, FL, following locations: 1. August 10, 2015: Hilton Garden nine actions. Action 1 modifies the with an additional hearing being held Inn, 5265 International Blvd., N. Special Management Zone (SMZ) via webinar. Please see SUPPLEMENTARY Charleston, SC 29418; phone: (843) 308– procedures to include protection of INFORMATION for specific locations. 9330. natural bottom; Action 2 modifies the FOR FURTHER INFORMATION CONTACT: Kim 2. August 12, 2015: Murrells Inlet framework procedure to allow Iverson, Public Information Officer, Community Center, 4462 Murrells Inlet modification of and/or additional South Atlantic Fishery Management Road, Murrells Inlet, SC 29576; phone: Spawning SMZs; Actions 3–7 includes Council, 4055 Faber Place Drive, Suite (843) 651–7373. alternatives to establish Spawning SMZs 201, N. Charleston, SC 29405; phone: 3. August 13, 2015: NC Division of off NC, SC, GA, and FL where fishing (843) 571–4366 or toll free (866) Marine Fisheries, Central District Office, for snapper grouper species would be SAFMC–10; fax: (843) 769–4520; email: 5285 Highway 70 West, Morehead City, prohibited, however, fishing for other [email protected]. NC 28557; phone: (252) 726–7021. species (e.g., billfish, tunas, mackerels) SUPPLEMENTARY INFORMATION: The 4. August 18, 2015: Public Hearing via would be allowed; Action 8 would hearings on Snapper Grouper webinar—registration for the webinar is establish transit and anchoring Regulatory Amendment 16 will take required. Information regarding provisions; and Action 9 would add a place August 11 (Little River, SC), registration will be posted on the ‘‘sunset provision’’ for Spawning SMZs August 12 (Jacksonville, NC), and Council’s Web site at www.safmc.net. after 10 years if not reauthorized. August 17 (Ormond Beach, FL). The 5. August 24, 2015: Georgia Dept. of Background information regarding Question and Answer Webinar for Natural Resources, Coastal Resources Snapper Grouper Amendment 36, Snapper Grouper Regulatory Division, One Conservation Way, including a public hearing draft of the Amendment 16 will be on Monday, Brunswick, GA 31520–8687; phone: document, a document summary, and a August 3, 2015. (912) 264–7218. PowerPoint presentation will be posted The public hearings for Snapper 6. August 25, 2015: Hilton Garden to the Council’s Web site Grouper Amendment 36 will take place Inn—Daytona Beach Airport, 189 (www.safmc.net) no later than 5 p.m. on

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July 30, 2015. Written comments will and shall ensure compliance with the Defense Policy Board and the Defense also be accepted via email or U.S. mail requirements of the FACA, the Science Board to serve as non-voting ex- until 5 p.m. on August 31, 2015. Email Government in the Sunshine Act of officio SGE members of the Board and comments to: [email protected]. 1976 (5 U.S.C. 552b, as amended) (‘‘the the Director of the Office of Please include the words ‘‘Amendment Sunshine Act’’), governing Federal Management and Budget and the 36’’ in the subject line of the email. statutes and regulations, and established Comptroller General of the United Comments submitted by U.S. mail DoD policies and procedures. States to serve as non-voting ex-officio should be sent to: Robert K. Mahood, The Board shall be composed of no RGE members of the Board. The non- Executive Director, South Atlantic more than 35 members. The members voting ex-officio SGE members may Fishery Management Council, 4055 must possess the following: (a) A proven speak to the Board membership only on Faber Place Drive, Suite 201, North track record of sound judgment in those topics governed by their Charleston, SC 29405. leading or governing large, complex respective advisory boards provided the private sector corporations or information has been voted on by their Special Accommodations organizations and (b) a wealth of top- membership and is available to the These hearings are physically level, global business experience in the general public. They do not represent accessible to people with disabilities. areas of executive management, their respective advisory boards. These Requests for auxiliary aids should be corporate governance, audit and non-voting ex-officio SGE and RGE directed to the council office (see finance, human resources, economics, members, when invited by the Secretary ADDRESSES) 3 days prior to the meeting. technology, or healthcare. The Board of Defense, will not count toward the Note: The times and sequence specified in members will be appointed by the Board’s total membership and may not this agenda are subject to change. Secretary of Defense or the Deputy participate in the Board’s deliberations. Secretary of Defense for a term of The Director of Administration, Office Dated: July 14, 2015. service of one-to-four years and will be of the DCMO, on behalf of the Secretary Tracey L. Thompson, renewed on an annual basis in of Defense, the Deputy Secretary of Acting Deputy Director, Office of Sustainable accordance with DoD policies and Defense, and the DCMO and pursuant to Fisheries, National Marine Fisheries Service. procedures. Members of the Board who DoD policies and procedures, may [FR Doc. 2015–17650 Filed 7–17–15; 8:45 am] are not full-time or permanent part-time appoint, as deemed necessary, non- BILLING CODE 3510–22–P Federal officers or employees will be voting subject matter experts (SMEs) to appointed as experts or consultants assist the Board or its subcommittees on pursuant to 5 U.S.C. 3109 to serve as an ad hoc basis. These non-voting SMEs special government employee (SGE) are not members of the Board or its DEPARTMENT OF DEFENSE members. Members of the Board who subcommittees and will not engage or Office of the Secretary are full-time or permanent part-time participate in any deliberations by the Federal officers or employees will be Board or its subcommittees. These non- Charter Renewal of Department of appointed pursuant to 41 CFR 102– voting SMEs, if not full-time or Defense Federal Advisory Committees 3.130(a) to serve as regular government permanent part-time Federal employee (RGE) members. All members government officers or employees, will AGENCY: Department of Defense. of the Board are appointed to provide be appointed pursuant to 5 U.S.C. 3109 ACTION: Amendment of Federal advice on the basis of their best on an intermittent basis to address Advisory Committee. judgment without representing any specific issues under consideration by particular point of view and in a manner the Board. SUMMARY: The Department of Defense is that is free from conflict of interest. DoD, when necessary and consistent publishing this notice to announce that Consistent with Deputy Secretary of with the Board’s mission and DoD it is amending the charter for the Defense policy, the DCMO may appoint policies and procedures, may establish Defense Business Board (‘‘the Board’’). the Board chair or vice chairs from subcommittees, task forces, or working FOR FURTHER INFORMATION CONTACT: Jim among the Secretary of Defense groups to support the Board. Freeman, Advisory Committee approved Board membership and, in Establishment of subcommittees will be Management Officer for the Department doing so, the DCMO shall determine the based upon a written determination, to of Defense, 703–692–5952. term of service for the Board chair and/ include terms of reference, by the SUPPLEMENTARY INFORMATION: This or chairs, which shall not exceed the Secretary of Defense or the Deputy committee’s charter is being amended in member’s approved term of service. Secretary of Defense. Such accordance with the Federal Advisory All Board members will be subcommittees shall not work Committee Act (FACA) of 1972 (5 reimbursed for travel and per diem as it independently of the Board and shall U.S.C., Appendix, as amended) and 41 pertains to official business of the report all their recommendations and CFR 102–3.50(d). Board. Board members will serve advice solely to the Board for full The Board is a discretionary Federal without compensation. No member, deliberation and discussion. advisory committee that provides the unless authorized by the Secretary of Subcommittees, task forces, or working Secretary of Defense and the Deputy Defense or the Deputy Secretary of groups have no authority to make Secretary of Defense with independent Defense, may serve more than two decisions and recommendations, advice and recommendations on critical consecutive terms of service on the verbally or in writing, on behalf of the matters concerning the Department of Board, to include its subcommittees, or Board. No subcommittee or any of its Defense (DoD). The Board shall examine serve on more than two DoD federal members can update or report, verbally and advise on overall DoD management advisory committees at one time. or in writing, directly to the DoD or to and governance from a private sector The Secretary of Defense or the any Federal officer or employee. perspective. Deputy Secretary of Defense, according The Secretary of Defense or the The DoD, through the Office of the to DoD policies and procedures Deputy Secretary of Defense shall Deputy Chief Management Officer pertaining to inviting or appointing appoint subcommittee members even if (DCMO), shall provide support for the individuals to serve on advisory the member in question is already a performance of the Board’s functions committees, may invite the chairs of the member of the Board. Subcommittee

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members, with the approval of the adjourn any meeting when the DFO, or Street, Suite 150, Arlington, VA 22203. Secretary of Defense, may serve a term the Alternate DFO, determines Email: whs.pentagon.em.mbx.judicial- of one-to-four years, subject to annual adjournment to be in the public interest [email protected]. Phone: (703) 693–3849. renewals of their appointment; however, or required by governing regulations or Web site: http://jpp.whs.mil. no individual appointed to any DoD policies and procedures. SUPPLEMENTARY INFORMATION: This subcommittee of the Board shall serve Pursuant to 41 CFR 102–3.105(j) and public meeting is being held under the more than a total of two consecutive 102–3.140, the public or interested provisions of the Federal Advisory terms of service on the Board including organizations may submit written Committee Act of 1972 (5 U.S.C., any subcommittees unless otherwise statements to Board membership about Appendix, as amended), the authorized by the Secretary of Defense the Board’s mission and functions. Government in the Sunshine Act of or the Deputy Secretary of Defense. Written statements may be submitted at 1976 (5 U.S.C. 552b, as amended), and Subcommittee members, if not full- any time or in response to the stated 41 CFR 102–3.150. time or permanent part-time Federal agenda of planned meeting of the Board. Purpose of the Meeting: In section officers or employees, will be appointed All written statements shall be 576(a)(2) of the National Defense as experts or consultants pursuant to 5 submitted to the DFO for the Board, and Authorization Act for Fiscal Year 2013 U.S.C. 3109 to serve as SGE members. this individual will ensure that the (Pub. L. 112–239), as amended, Those subcommittee members who are written statements are provided to the Congress tasked the Judicial full-time or permanent part-time Federal membership for their consideration. Proceedings Panel to conduct an officers or employees will be appointed Contact information for the Board’s independent review and assessment of pursuant to 41 CFR 102–3.130(a) to DFO can be obtained from the GSA’s judicial proceedings conducted under serve as RGE employees. With the FACA Database—http:// the Uniform Code of Military Justice exception reimbursement of official www.facadatabase.gov/. (UCMJ) involving adult sexual assault travel and per diem related to the Board The DFO, pursuant to 41 CFR 102– and related offenses since the or its subcommittees, subcommittee 3.150, will announce planned meetings amendments made to the UCMJ by members shall serve without of the Board. The DFO, at that time, may section 541 of the National Defense compensation. provide additional guidance on the Authorization Act for Fiscal Year 2012 Each subcommittee member is submission of written statements that (Pub. L. 112–81; 125 Stat. 1404), for the appointed to provide advice on behalf of are in response to the stated agenda for purpose of developing the Government on the basis of his or the planned meeting in question. recommendations for improvements to her best judgment without representing Dated: July 15, 2015. any particular point of view and in a such proceedings. At this meeting, the Aaron Siegel, manner that is free from conflict of Panel will review plans to address Alternate OSD Federal Register Liaison current and pending topics and interest. Officer, Department of Defense. Consistent with Deputy Secretary of deliberate on issues relating to Defense policy, the DCMO may appoint [FR Doc. 2015–17696 Filed 7–17–15; 8:45 am] restitution and compensation for sexual the subcommittee chair or chairs from BILLING CODE 5001–06–P assault victims and retaliation against among the Secretary of Defense individuals who report incidents of approved subcommittee membership sexual assault within the military. The DEPARTMENT OF DEFENSE and, in doing so, the DCMO shall Panel is interested in written and oral comments from the public, including determine the term of service for the Office of the Secretary subcommittee chair or chairs, which non-governmental organizations, shall not exceed the member’s approved Judicial Proceedings Since Fiscal Year relevant to these issues or any of the term of service. 2012 Amendments Panel (Judicial Panel’s tasks. All subcommittees operate under the Proceedings Panel); Notice of Federal Agenda provisions of FACA, the Sunshine Act, Advisory Committee Meeting • governing Federal statutes and 8:30–9:00 Administrative Session regulations, and established DoD AGENCY: Department of Defense. (41 CFR 102–3.160, not subject to policies and procedures. ACTION: Notice of meeting. notice & open meeting The Board’s Designated Federal requirements) SUMMARY: The Department of Defense is • Officer (DFO) must be a full-time or 9:00–10:00 Panel Discussion publishing this notice to announce the permanent part-time DoD employee, Regarding Current and Pending following Federal Advisory Committee designated in accordance with Topics: Restitution and meeting of the Judicial Proceedings established DoD policies and Compensation, Retaliation against since Fiscal Year 2012 Amendments procedures. Sexual Assault Victims, Trends and The Board’s DFO is required to attend Panel (‘‘the Judicial Proceedings Panel’’ Statistics of Sexual Assault Crimes all meetings of the Board and its or ‘‘the Panel’’). The meeting is open to Response, and Article 120 of the subcommittees for the entire duration of the public. UCMJ (Public meeting begins) • each and every meeting. However, in DATES: A meeting of the Judicial 10:00–12:30 Deliberations: the absence of the Board’s DFO, a Proceedings Panel will be held on Restitution and Compensation for properly approved Alternate DFO, duly Thursday, August 6, 2015. The Public Sexual Assault Victims • appointed to the Board according to Session will begin at 10:00 a.m. and end 12:30–1:00 Lunch • DoD policies and procedures, must at 5:00 p.m. 1:00–4:30 Deliberations: Retaliation attend the entire duration of all ADDRESSES: The George Washington Against Victims of Sexual Assault meetings of the Board or its University, School of Law, Faculty Crimes • subcommittees. Conference Center, 2000 H St. NW., 4:30–4:45 Break The DFO, or the Alternate DFO, shall Washington, DC 20052. • 4:45–5:00 Public Comment call all of the Board and its FOR FURTHER INFORMATION CONTACT: Ms. Availability of Materials for the subcommittees meetings; prepare and Julie Carson, Judicial Proceedings Panel, Meeting: A copy of the August 6, 2015 approve all meeting agendas; and One Liberty Center, 875 N. Randolph meeting agenda or any updates or

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changes to the agenda, to include Pentagon, Room 3B747, Washington, DC information, as appropriate. To protect individual speakers not identified at the 20301–1600. the privacy interests of the individual or time of this notice, as well as other Dated: July 15, 2015. individuals involved, personally materials presented related to the Aaron Siegel, identifiable information has been meeting, may be obtained at the meeting redacted, as appropriate. or from the Panel’s Web site at http:// Alternate OSD Federal Register Liaison Officer, Department of Defense. jpp.whs.mil. Part B—Assistance for Education of All Public’s Accessibility to the Meeting: [FR Doc. 2015–17720 Filed 7–17–15; 8:45 am] Children With Disabilities Pursuant to 5 U.S.C. 552b and 41 CFR BILLING CODE 5001–06–P Section 611—Authorization; Allotment; 102–3.140 through 102–3.165, and the Use of Funds; Authorization of availability of space, this meeting is Appropriations; and Section 619— open to the public. Seating is limited DEPARTMENT OF EDUCATION Preschool Grants and is on a first-come basis. Special Accommodations: Individuals List of Correspondence From April 1, Topic Addressed: Subgrants to Local requiring special accommodations to 2014 Through June 30, 2014 and July Educational Agencies access the public meeting should 1, 2014 Through September 30, 2014 Æ Letter dated June 11, 2014, to Chief contact Ms. Julie Carson at AGENCY: Office of Special Education and State School Officers, providing whs.pentagon.em.mbx.judicial-panel@ Rehabilitative Services, Department of guidance on how recent changes to the mail.mil at least five (5) business days Education. National School Lunch Program could prior to the meeting so that appropriate ACTION: Notice. affect the manner in which State arrangements can be made. educational agencies allocate Part B of Procedures for Providing Public SUMMARY: The Secretary is publishing IDEA funds to local educational Comments: Pursuant to 41 CFR 102– the following list of correspondence agencies (LEAs) based on their relative 3.140 and section 10(a)(3) of the Federal from the U.S. Department of Education numbers of children living in poverty. Advisory Committee Act of 1972, the (Department) to individuals during the Section 612—State Eligibility public or interested organizations may second and third quarters of 2014. The submit written comments to the Panel correspondence describes the Topic Addressed: Children in Private about its mission and topics pertaining Department’s interpretations of the Schools to this public session. Written Individuals with Disabilities Education Æ comments must be received by Ms. Julie Letter dated September 29, 2014, to Act (IDEA) or the regulations that Teach NYS President Sam Sutton and Carson at least five (5) business days implement the IDEA. This list and the prior to the meeting date so that they consultant David Rubel, regarding letters or other documents described in whether certain inclusive models could may be made available to the Judicial this list, with personally identifiable Proceedings Panel for their be used in the delivery of special information redacted, as appropriate, consideration prior to the meeting. education and related services to can be found at: www2.ed.gov/policy/ Written comments should be submitted children with disabilities enrolled by speced/guid/idea/index.html. via email to Ms. Carson at their parents in private schools. FOR FURTHER INFORMATION CONTACT: whs.pentagon.em.mbx.judicial-panel@ Section 615—Procedural Safeguards mail.mil in the following formats: Jessica Spataro or Mary Louise Dirrigl. Adobe Acrobat or Microsoft Word. Telephone: (202) 245–7605. Topic Addressed: Impartial Due Process Please note that since the Judicial If you use a telecommunications Hearings device for the deaf (TDD) or a text Proceedings Panel operates under the Æ Letter dated June 2, 2014, to telephone (TTY), you can call the provisions of the Federal Advisory Pennsylvania Attorney Mark W. Voigt, Federal Relay Service (FRS), toll free, at Committee Act, as amended, all written regarding a State’s timeline for an LEA 1–800–877–8339. comments will be treated as public to implement a final due process Individuals with disabilities can documents and will be made available hearing decision. for public inspection. If members of the obtain a copy of this list and the letters public are interested in making an oral or other documents described in this list Part C—Infants and Toddlers With statement, a written statement must be in an accessible format (e.g., braille, Disabilities large print, audiotape, or compact disc) submitted along with a request to Section 640—Payor of Last Resort provide an oral statement. Oral by contacting Jessica Spataro or Mary presentations by members of the public Louise Dirrigl at (202) 245–7605. Topic Addressed: System of Payments will be permitted between 4:45 p.m. and SUPPLEMENTARY INFORMATION: The Æ Letter dated July 10, 2014, to Texas 5:00 p.m. on August 6, 2015 in front of following list identifies correspondence Department of Assistive and the JPP members. The number of oral from the Department issued from April Rehabilitative Services Part C presentations to be made will depend 1, 2014 through June 30, 2014 and July Coordinator Kim Wedel, clarifying how on the number of requests received from 1, 2014 through September 30, 2014. the system of payment requirements can members of the public on a first-come Under section 607(f) of the IDEA, the be implemented while using a parent’s basis. After reviewing the requests for Secretary is required to publish this list or child’s public and private insurance oral presentation, the Chairperson and quarterly in the Federal Register. The or benefits as a funding source for the Designated Federal Officer will, list includes those letters that contain services under Part C of IDEA. having determined the statement to be interpretations of the requirements of relevant to the Panel’s mission, allot five the IDEA and its implementing Other Letters That Do Not Interpret Idea minutes to persons desiring to make an regulations, as well as letters and other But May Be of Interest to Readers oral presentation. documents that the Department believes Æ Dear Colleague Letter from the Committee’s Designated Federal will assist the public in understanding Office for Civil Rights dated May 14, Officer: The Panel’s Designated Federal the requirements of the law. The list 2014, regarding the applicability to Officer is Ms. Maria Fried, Judicial identifies the date and topic of each public charter schools of Federal civil Proceedings Panel, 1600 Defense letter and provides summary rights laws, regulations, and guidance.

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Electronic Access to This Document: the Commission’s Rules of Practice and Docket Numbers: ER13–1947–001. The official version of this document is Procedure (18 CFR 385.211, 385.214). Applicants: PJM Interconnection, the document published in the Federal Protests will be considered by the L.L.C. Register. Free Internet access to the Commission in determining the Description: Compliance filing: official edition of the Federal Register appropriate action to be taken, but will Designation of Filing Party assoc to and the Code of Federal Regulations is not serve to make protestants parties to Compliance Filing in Docket No. ER13– available via the Federal Digital System the proceeding. Any person wishing to 1947 to be effective N/A. at: www.gpo.gov/fdsys. At this site you become a party must file a notice of Filed Date: 7/14/15. can view this document, as well as all intervention or motion to intervene, as Accession Number: 20150714–5095. other documents of this Department appropriate. The Respondent’s answer Comments Due: 5 p.m. ET 8/4/15. published in the Federal Register, in and all interventions, or protests must Docket Numbers: ER15–1196–003. text or Adobe Portable Document be filed on or before the comment date. Applicants: Nevada Power Company, Format (PDF). To use PDF you must The Respondent’s answer, motions to Sierra Pacific Power Company. have Adobe Acrobat Reader, which is intervene, and protests must be served Description: Compliance Filing with available free at the site. on the Complainants. no tariff revisions of Nevada Power You may also access documents of the The Commission encourages Company, et al. Department published in the Federal electronic submission of protests and Filed Date: 7/13/15. Register by using the article search interventions in lieu of paper using the Accession Number: 20150713–5227. feature at: www.federalregister.gov. ‘‘eFiling’’ link at http://www.ferc.gov. Comments Due: 5 p.m. ET 8/3/15. Persons unable to file electronically Specifically, through the advanced Docket Numbers: ER15–2200–000. should submit an original and 5 copies search feature at this site, you can limit Applicants: PJM Interconnection, of the protest or intervention to the your search to documents published by L.L.C. Federal Energy Regulatory Commission, the Department. Description: Compliance filing: 888 First Street NE., Washington, DC Dated: July 15, 2015. Compliance Filing per 5/14/2015 Order 20426. Michael K. Yudin, This filing is accessible on-line at in Docket No. ER13–1947–000 to be Assistant Secretary for Special Education and http://www.ferc.gov, using the effective 1/1/2014. Rehabilitative Services. ‘‘eLibrary’’ link and is available for Filed Date: 7/14/15. [FR Doc. 2015–17766 Filed 7–17–15; 8:45 am] electronic review in the Commission’s Accession Number: 20150714–5087. BILLING CODE 4000–01–P Public Reference Room in Washington, Comments Due: 5 p.m. ET 8/4/15. DC. There is an ‘‘eSubscription’’ link on Docket Numbers: ER15–2201–000. the Web site that enables subscribers to Applicants: Alabama Power DEPARTMENT OF ENERGY receive email notification when a Company. document is added to a subscribed Description: Section 205(d) Rate Federal Energy Regulatory docket(s). For assistance with any FERC Filing: Wheeler Solar (McRae Solar) Commission Online service, please email SGIA Filing to be effective 6/29/2015. [Docket No. EL15–67–000] [email protected], or call Filed Date: 7/14/15. (866) 208–3676 (toll free). For TTY, call Accession Number: 20150714–5107. Linden VFT, LLC v. PJM (202) 502–8659. Comments Due: 5 p.m. ET 8/4/15. Interconnection, L.L.C.; Notice of Comment Date: 5:00 p.m. Eastern Docket Numbers: ER15–2202–000. Amended Complaint Time on July 30, 2015. Applicants: Alabama Power Company. Take notice that on July 10, 2015, Dated: July 14, 2015. Description: Section 205(d) Rate pursuant to sections 206 and 306 of the Nathaniel J. Davis, Sr., Filing: Wheeler Solar (Wheeler Solar) Federal Power Act, 16 U.S.C. 824(e) and Deputy Secretary. SGIA Filing to be effective 6/29/2015. 825(e) and Rule 206 of the Federal [FR Doc. 2015–17695 Filed 7–17–15; 8:45 am] Filed Date: 7/14/15. Energy Regulatory Commission’s BILLING CODE 6717–01–P Accession Number: 20150714–5108. (Commission) Rules of Practice and Comments Due: 5 p.m. ET 8/4/15. Procedure, 18 CFR 385.206, Linden VFT, LLC (Complainant), filed an DEPARTMENT OF ENERGY Docket Numbers: ER15–2203–000. amended complaint against PJM Applicants: Midcontinent Interconnection, L.L.C. (PJM or Federal Energy Regulatory Independent System Operator, Inc. Respondent), alleging that the Commission Description: Section 205(d) Rate _ Respondent’s proposed cost allocations Filing: 2015–07–14 SA 2819 Certificate Combined Notice of Filings #2 for projects resulting from PJM’s 2013 of Concurrence ComEd-Ameren TIA to Regional Transmission Expansion Plan, Take notice that the Commission be effective 7/13/2015. including Public Service Electric and received the following electric rate Filed Date: 7/14/15. Gas Company upgrades, are unjust, filings: Accession Number: 20150714–5127. Comments Due: 5 p.m. ET 8/4/15. unreasonable, unduly discriminatory, Docket Numbers: ER11–3576–012; and preferential, as more fully ER11–3401–011. Docket Numbers: ER15–2204–000. explained in the complaint. Applicants: Golden Spread Electric Applicants: California Independent The Complainant certifies that copies Cooperative, Inc., Golden Spread System Operator Corporation. of the complaint were served on the Panhandle Wind Ranch, LLC. Description: Section 205(d) Rate contacts for the Respondent as listed on Description: Notice of Non-material Filing: 2015–07–14 Pricing the Commission’s list of Corporate Change in Status of Golden Spread Enhancements—ETC–TOR Self- Officials. Electric Cooperative, Inc. Schedules to be effective 9/15/2015. Any person desiring to intervene or to Filed Date: 7/13/15 Filed Date: 7/14/15. protest this filing must file in Accession Number: 20150713–5221. Accession Number: 20150714–5135. accordance with Rules 211 and 214 of Comments Due: 5 p.m. ET 8/3/15. Comments Due: 5 p.m. ET 8/4/15.

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The filings are accessible in the Designation of Filing Party to be Filed Date: 7/13/15. Commission’s eLibrary system by effective 7/13/2015. Accession Number: 20150713–5125. clicking on the links or querying the Filed Date: 7/13/15. Comments Due: 5 p.m. ET 8/3/15. docket number. Accession Number: 20150713–5140. The filings are accessible in the Any person desiring to intervene or Comments Due: 5 p.m. ET 8/3/15. Commission’s eLibrary system by protest in any of the above proceedings Docket Numbers: ER13–1957–001. clicking on the links or querying the must file in accordance with Rules 211 Applicants: ISO New England Inc. docket number. and 214 of the Commission’s Description: Compliance filing: Any person desiring to intervene or Regulations (18 CFR 385.211 and Second Interregional Compliance Filing protest in any of the above proceedings 385.214) on or before 5:00 p.m. Eastern Protocol Agreement to be effective 7/13/ must file in accordance with Rules 211 time on the specified comment date. 2015. and 214 of the Commission’s Protests may be considered, but Filed Date: 7/13/15. Regulations (18 CFR 385.211 and intervention is necessary to become a Accession Number: 20150713–5106. 385.214) on or before 5:00 p.m. Eastern party to the proceeding. Comments Due: 5 p.m. ET 8/3/15. time on the specified comment date. eFiling is encouraged. More detailed Docket Numbers: ER13–1960–001. Protests may be considered, but information relating to filing Applicants: ISO New England Inc., intervention is necessary to become a requirements, interventions, protests, New England Power Pool Participants party to the proceeding. service, and qualifying facilities filings Committee. eFiling is encouraged. More detailed can be found at: http://www.ferc.gov/ Description: Compliance filing: information relating to filing docs-filing/efiling/filing-req.pdf. For Second Interregional Compliance Filing requirements, interventions, protests, other information, call (866) 208–3676 Tariff Revisions to be effective 1/1/2014. service, and qualifying facilities filings (toll free). For TTY, call (202) 502–8659. Filed Date: 7/13/15. can be found at: http://www.ferc.gov/ Dated: July 14, 2015. Accession Number: 20150713–5139. docs-filing/efiling/filing-req.pdf. For Nathaniel J. Davis, Sr., Comments Due: 5 p.m. ET 8/3/15. other information, call (866) 208–3676 Deputy Secretary. Docket Numbers: ER14–1661–001. (toll free). For TTY, call (202) 502–8659. [FR Doc. 2015–17694 Filed 7–17–15; 8:45 am] Applicants: MidAmerican Central Dated: July 13, 2015. BILLING CODE 6717–01–P California Transco, LLC. Nathaniel J. Davis, Sr., Description: Compliance filing: Settlement Compliance Filing to be Deputy Secretary. DEPARTMENT OF ENERGY effective 6/5/2014. [FR Doc. 2015–17692 Filed 7–17–15; 8:45 am] Filed Date: 7/13/15. BILLING CODE 6717–01–P Federal Energy Regulatory Accession Number: 20150713–5101. Commission Comments Due: 5 p.m. ET 8/3/15. DEPARTMENT OF ENERGY Docket Numbers: ER15–535–002. Combined Notice of Filings #2 Applicants: Nevada Power Company. Federal Energy Regulatory Take notice that the Commission Description: Compliance filing: OATT Commission received the following electric corporate Order No. 676–H Compliance Filing filings: 07.13.15 to be effective 5/15/2015. Combined Notice of Filings #1 Docket Numbers: EC15–98–000. Filed Date: 7/13/15. Applicants: Union Power Partners, Accession Number: 20150713–5138. Take notice that the Commission L.P., Entergy Arkansas, Inc., Entergy Comments Due: 5 p.m. ET 8/3/15. received the following electric corporate Gulf States Louisiana, L.L.C., Entergy Docket Numbers: ER15–2184–000. filings: Texas, Inc. Applicants: Southwest Power Pool, Docket Numbers: EC15–167–000. Description: Response to May 28, Inc. Applicants: Sky River LLC, Sky River 2015 letter requesting additional Description: Section 205(d) Rate Asset Holdings, LLC, Sagebrush, a information of Entergy Services, Inc. on Filing: 3055 Associated Electric California partnership, Sagebrush behalf of Union Power Partners, L.P., et Cooperative, Inc. NITSA NOA to be Partner Fifteen, Inc. al. effective 6/1/2015. Description: Application of Sky River Filed Date: 6/30/15. Filed Date: 7/13/15. LLC, et al. for Authorization Under Accession Number: 20150630–5458. Accession Number: 20150713–5053. Section 203 of the Federal Power Act Comments Due: 5 p.m. ET 8/14/15. Comments Due: 5 p.m. ET 8/3/15. and Request for Expedited Action. Take notice that the Commission Docket Numbers: ER15–2185–000. Filed Date: 7/13/15. received the following electric rate Applicants: PJM Interconnection, Accession Number: 20150713–5216. filings: L.L.C. Comments Due: 5 p.m. ET 8/3/15. Docket Numbers: ER13–1942–001. Applicants: New York Independent Description: Section 205(d) Rate Take notice that the Commission System Operator, Inc. Filing: Service Agreement No. 4210; received the following electric rate Description: Compliance filing: Queue No. Z2–090 to be effective 4/8/ filings: NYISO Compliance Order 1000 2015. Docket Numbers: ER10–3168–013; Interregional Tariff Revisions to be Filed Date: 7/13/15. ER15–356–003; ER15–357–003; ER12– effective 1/1/2014. Accession Number: 20150713–5054. 2570–009; ER13–618–008. Filed Date: 7/13/15. Comments Due: 5 p.m. ET 8/3/15. Applicants: ArcLight Energy Accession Number: 20150713–5137. Docket Numbers: ER15–2186–000. Marketing, LLC, Chief Conemaugh Comments Due: 5 p.m. ET 8/3/15. Applicants: Midcontinent Power, LLC, Chief Keystone Power, Docket Numbers: ER13–1946–001. Independent System Operator, Inc. LLC, Panther Creek Power Operating, Applicants: New York Independent Description: Section 205(d) Rate LLC, Westwood Generation, LLC. System Operator, Inc. Filing: 2015–07–13 RSG Interchange Description: Notice of Non-Material Description: Compliance filing: Schedules Emergency Directives to be Change in Status of ArcLight Energy Compliance Filing Order No. 1000 effective 9/11/2015. Marketing, LLC, et al.

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Filed Date: 7/13/15. Docket Numbers: ER15–2189–000. Description: Baseline eTariff Filing: Accession Number: 20150713–5212. Applicants: Duke Energy Progress, SFA to be effective 7/15/2015. Comments Due: 5 p.m. ET 8/3/15. Inc., Duke Energy Florida, Inc., Duke Filed Date: 7/14/15. Docket Numbers: ER14–2871–005; Energy Carolinas, LLC Accession Number: 20150714–5003. ER10–3243–007; ER10–3244–007; Description: Section 205(d) Rate ER10–3245–006; ER10–3249–006; Filing: Joint OATT Amendment to be Comments Due: 5 p.m. ET 8/4/15. effective 9/11/2015. ER10–3250–006; ER10–2977–006; Docket Numbers: ER15–2197–000. ER10–3169–009; ER10–3251–005; Filed Date: 7/13/15. ER14–2382–005; ER15–621–004; ER11– Accession Number: 20150713–5158. Applicants: DTE Electric Company. 2639–006; ER15–622–004; ER15–463– Comments Due: 5 p.m. ET 8/3/15. Description: Section 205(d) Rate 004; ER15–110–004; ER13–1586–006; Docket Numbers: ER15–2190–000. Filing: DTE and City of Croswell ER10–1992–012. Applicants: Midcontinent Interconnection Agreement to be Applicants: Cameron Ridge, LLC, Independent System Operator, Inc. effective 9/1/2015. Chandler Wind Partners, LLC, Coso Description: Section 205(d) Rate Filed Date: 7/14/15. Geothermal Power Holdings, LLC, Foote Filing: 2015–07–13 Attachment J TSR Creek II, LLC, Foote Creek III, LLC, Waiver Filing to be effective 9/1/2015. Accession Number: 20150714–5024. Foote Creek IV, LLC, Mesquite Power, Filed Date: 7/13/15. Comments Due: 5 p.m. ET 8/4/15. LLC, Michigan Power Limited Accession Number: 20150713–5159. Docket Numbers: ER15–2198–000. Partnership, Oak Creek Wind Power, Comments Due: 5 p.m. ET 8/3/15. LLC, ON Wind Energy LLC, Pacific Docket Numbers: ER15–2191–000. Applicants: DTE Electric Company. Crest Power, LLC, Ridge Crest Wind Applicants: Grant Wind, LLC. Description: Section 205(d) Rate Partners, LLC, Ridgetop Energy, LLC, Description: Baseline eTariff Filing: Filing: DTE and Village of Sebewaing San Gorgonio Westwinds II, LLC, Terra- Application for MBR to be effective 7/ Interconnection Agreement to be Gen Energy Services, LLC, TGP Energy 14/2015. effective 9/1/2015. Management, LLC, Victory Garden Filed Date: 7/13/15. Filed Date: 7/14/15. Phase IV, LLC. Accession Number: 20150713–5160. Description: Notice of Non-Material Comments Due: 5 p.m. ET 8/3/15. Accession Number: 20150714–5025. Change in Status of Cameron Ridge, Docket Numbers: ER15–2192–000. Comments Due: 5 p.m. ET 8/4/15. LLC, et al. Applicants: PJM Interconnection, Docket Numbers: ER15–2199–000. Filed Date: 7/13/15. L.L.C. Accession Number: 20150713–5215. Description: Tariff Cancellation: Applicants: DTE Electric Company. Comments Due: 5 p.m. ET 8/3/15. Notice of Cancellation of Service Description: Section 205(d) Rate Docket Numbers: ER15–1554–000. Agreement No. 3939; Queue Z2–019 to Filing: DTE and Thumb Electric Applicants: Midcontinent be effective 6/15/2015. Cooperative Interconnection Agreement Independent System Operator, Inc. Filed Date: 7/13/15. to be effective 9/1/2015. Description: Report Filing: 2015–07– _ Accession Number: 20150713–5163. Filed Date: 7/14/15. 14 SA 2780 Refund Report of ATC–MP Comments Due: 5 p.m. ET 8/3/15. OCSA to be effective N/A. Accession Number: 20150714–5026. Docket Numbers: ER15–2193–000. Filed Date: 7/14/15. Comments Due: 5 p.m. ET 8/4/15. Accession Number: 20150714–5030. Applicants: PJM Interconnection, Comments Due: 5 p.m. ET 8/4/15. L.L.C., Commonwealth Edison The filings are accessible in the Company. Commission’s eLibrary system by Docket Numbers: ER15–1555–000. Description: Section 205(d) Rate Applicants: Midcontinent clicking on the links or querying the Filing: ComEd submits Transmission Independent System Operator, Inc. docket number. Interconnection Agreement 4212 to be Description: Report Filing: 2015–07– effective 7/13/2015. Any person desiring to intervene or 14_SA 2781 Refund Report of ATC– Filed Date: 7/13/15. protest in any of the above proceedings SWLP OCSA to be effective N/A. Accession Number: 20150713–5164. must file in accordance with Rules 211 Filed Date: 7/14/15. Comments Due: 5 p.m. ET 8/3/15. and 214 of the Commission’s Accession Number: 20150714–5027. Regulations (18 CFR 385.211 and Comments Due: 5 p.m. ET 8/4/15. Docket Numbers: ER15–2194–000. 385.214) on or before 5:00 p.m. Eastern Docket Numbers: ER15–2187–000. Applicants: SunE Solar XVII Project1, time on the specified comment date. Applicants: Chief Conemaugh Power, LLC. Protests may be considered, but LLC. Description: Baseline eTariff Filing: intervention is necessary to become a Description: Section 205(d) Rate SFA to be effective 7/15/2015. party to the proceeding. Filed Date: 7/14/15. Filing: Succession to Duquesne Interests eFiling is encouraged. More detailed to be effective 7/14/2015. Accession Number: 20150714–5001. Comments Due: 5 p.m. ET 8/4/15. information relating to filing Filed Date: 7/13/15. requirements, interventions, protests, Docket Numbers: ER15–2195–000. Accession Number: 20150713–5156. service, and qualifying facilities filings Applicants: SunE Solar XVII Project2, Comments Due: 5 p.m. ET 8/3/15. can be found at: http://www.ferc.gov/ LLC. Docket Numbers: ER15–2188–000. docs-filing/efiling/filing-req.pdf. For Description: Baseline eTariff Filing: Applicants: Chief Keystone Power, other information, call (866) 208–3676 SFA to be effective 7/15/2015. LLC. (toll free). For TTY, call (202) 502–8659. Description: Section 205(d) Rate Filed Date: 7/14/15. Filing: Succession to Duquesne Interests Accession Number: 20150714–5002. Dated: July 14, 2015. to be effective 7/14/2015. Comments Due: 5 p.m. ET 8/4/15. Nathaniel J. Davis, Sr., Filed Date: 7/13/15. Docket Numbers: ER15–2196–000. Deputy Secretary. Accession Number: 20150713–5157. Applicants: SunE Solar XVII Project3, [FR Doc. 2015–17693 Filed 7–17–15; 8:45 am] Comments Due: 5 p.m. ET 8/3/15. LLC. BILLING CODE 6717–01–P

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DEPARTMENT OF ENERGY ER12–1435–005; ER12–1434–005; Compliance Filing to be effective 7/11/ ER12–1432–005; ER12–1431–005; 2015. Federal Energy Regulatory ER11–3959–004; ER11–3620–007; Filed Date: 7/10/15. Commission ER11–2882–008; ER10–2628–002; Accession Number: 20150710–5150. ER10–2449–007; ER10–2446–007; Comments Due: 5 p.m. ET 7/31/15. Combined Notice of Filings #1 ER10–2444–007; ER10–2442–007; Docket Numbers: ER15–2158–000. Take notice that the Commission ER10–2440–007; ER10–2435–007; Applicants: Butler Ridge Wind Energy received the following electric rate ER10–2432–007. Center, LLC. filings: Applicants: Hatchet Ridge Wind, LLC, Description: Compliance filing: Butler Spring Valley Wind LLC, Ocotillo Ridge Wind Energy Center, LLC Order Docket Numbers: ER10–1836–007; Express LLC, Lyonsdale Biomass, LLC, No. 784 Compliance Filing to be ER10–2005–007; ER11–26–007; ER10– ReEnergy Sterling CT Limited effective 7/11/2015. 2551–006; ER10–1841–007; ER13–712– Partnership, Bayonne Plant Holding, Filed Date: 7/10/15. 007; ER10–1843–007; ER10–1844–007; L.L.C., Camden Plant Holding, L.L.C., Accession Number: 20150710–5151. ER10–1845–007; ER10–1846–006; Dartmouth Power Associates Limited Comments Due: 5 p.m. ET 7/31/15. ER10–1852–010; ER10–1855–006; Partnership, Elmwood Park Power, LLC, ER10–1897–007; ER10–1905–007; Docket Numbers: ER15–2159–000. Newark Bay Cogeneration Partnership, ER10–1907–007; ER10–1918–007; Applicants: Crystal Lake Wind, LLC. L.P, Pedricktown Cogeneration ER10–1925–007; ER10–1927–007; Description: Compliance filing: Company LP, York Generation Company ER11–2642–007; ER10–1950–007; Crystal Lake Wind, LLC Order No. 784 LLC, ReEnergy Ashland LLC, ReEnergy ER10–2006–008; ER10–1964–007; Compliance Filing to be effective 7/11/ Fort Fairfield LLC, ReEnergy Livermore ER10–1965–007; ER10–1970–007; 2015. Falls LLC, ReEnergy Stratton LLC, Filed Date: 7/10/15. ER10–1972–007; ER10–1971–020; ReEnergy Black River LLC, Brandon Accession Number: 20150710–5152. ER11–4462–012; ER10–1983–007; Shores LLC, C.P. Crane LLC, H.A. Comments Due: 5 p.m. ET 7/31/15. ER10–1984–007; ER13–2461–002; Wagner LLC, Raven Power Marketing ER10–1991–007; ER12–1660–007; Docket Numbers: ER15–2160–000. LLC, Sapphire Power Marketing LLC, ER10–1994–006; ER10–2078–008; Applicants: Crystal Lake Wind II, TrailStone Power, LLC, CSOLAR IV ER10–1995–006. LLC. Applicants: Ashtabula Wind, LLC, West, LLC, Fowler Ridge IV Wind Farm Description: Compliance filing: Ashtabula Wind II, LLC, Ashtabula LLC, Lost Creek Wind, LLC, Post Rock Crystal Lake Wind II, LLC Order No. 784 Wind III, LLC, Baldwin Wind, LLC, Wind Power Project, LLC. Compliance Filing to be effective 7/11/ Description: Supplement to June 15, Butler Ridge Wind Energy Center, LLC, 2015. 2015 Notification of Non-Material Cimarron Wind Energy, LLC, Crystal Filed Date: 7/10/15. Change in Status of the Riverstone MBR Lake Wind, LLC, Crystal Lake Wind II, Accession Number: 20150710–5153. Entities. LLC, Crystal Lake Wind III, LLC, Day Comments Due: 5 p.m. ET 7/31/15. Filed Date: 7/1/15. County Wind, LLC, Florida Power & Docket Numbers: ER15–2161–000. Accession Number: 20150701–5369. Applicants: Crystal Lake Wind III, Light Company, FPL Energy Burleigh Comments Due: 5 p.m. ET 7/22/15. County Wind, LLC, FPL Energy LLC. Hancock County Wind, LLC, FPL Docket Numbers: ER15–2154–000. Description: Compliance filing: Energy Mower County, LLC, FPL Energy Applicants: Ashtabula Wind, LLC. Crystal Lake Wind III, LLC Order No. North Dakota Wind, LLC, FPL Energy Description: Compliance filing: 784 Compliance Filing to be effective 7/ North Dakota Wind II, LLC, FPL Energy Ashtabula Wind, LLC Order No. 784 11/2015. Oliver Wind I, LLC, FPL Energy Oliver Compliance Filing to be effective 7/11/ Filed Date: 7/10/15. Wind II, LLC, FPL Energy South Dakota 2015. Accession Number: 20150710–5154. Filed Date: 7/10/15. Wind, LLC, Garden Wind, LLC, Comments Due: 5 p.m. ET 7/31/15. Accession Number: 20150710–5147. Hawkeye Power Partners, LLC, Lake Docket Numbers: ER15–2162–000. Comments Due: 5 p.m. ET 7/31/15. Benton Power Partners II, LLC, Langdon Applicants: Day County Wind, LLC. Wind, LLC, NextEra Energy Duane Docket Numbers: ER15–2155–000. Description: Compliance filing: Day Arnold, LLC, NextEra Energy Point Applicants: Ashtabula Wind II, LLC. County Wind, LLC Order No. 784 Beach, LLC, NextEra Energy Power Description: Compliance filing: Compliance Filing to be effective 7/11/ Marketing, LLC, NEPM II, LLC, Osceola Ashtabula Wind II, LLC Order No. 784 2015. Windpower, LLC, Osceola Windpower Compliance Filing to be effective 7/11/ Filed Date: 7/10/15. II, LLC, Pheasant Run Wind, LLC, Story 2015. Accession Number: 20150710–5155. Wind, LLC, Tuscola Bay Wind, LLC, Filed Date: 7/10/15. Comments Due: 5 p.m. ET 7/31/15. Wessington Wind Energy Center, LLC, Accession Number: 20150710–5148. Docket Numbers: ER15–2163–000. White Oak Energy LLC, Wilton Wind II, Comments Due: 5 p.m. ET 7/31/15. Applicants: FPL Energy Burleigh LLC. Docket Numbers: ER15–2156–000. County Wind, LLC. Description: Triennial Market Power Applicants: Ashtabula Wind III, LLC. Description: Compliance filing: FPL Update for the Central Region of the Description: Compliance filing: Energy Burleigh County Wind, LLC NextEra Companies. Ashtabula Wind III, LLC Order No. 784 Order No. 784 Compliance Filing to be Filed Date: 7/10/15. Compliance Filing to be effective 7/11/ effective 7/11/2015. Accession Number: 20150710–5260. 2015. Filed Date: 7/10/15. Comments Due: 5 p.m. ET 9/8/15. Filed Date: 7/10/15. Accession Number: 20150710–5156. Docket Numbers: ER11–2489–005; Accession Number: 20150710–5149. Comments Due: 5 p.m. ET 7/31/15. ER15–1019–001; ER14–1656–004; Comments Due: 5 p.m. ET 7/31/15. Docket Numbers: ER15–2164–000. ER14–1439–002; ER13–2308–002; Docket Numbers: ER15–2157–000. Applicants: FPL Energy Hancock ER13–2102–003; ER12–726–004; ER12– Applicants: Baldwin Wind, LLC. County Wind, LLC. 2639–003; ER12–2513–004; ER12–2512– Description: Compliance filing: Description: Compliance filing: FPL 004; ER12–2511–004; ER12–2510–004; Baldwin Wind, LLC Order No. 784 Energy Hancock County Wind, LLC

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Order No. 784 Compliance Filing to be Description: Compliance filing: Description: Compliance filing: effective 7/11/2015. Garden Wind, LLC Order No. 784 Pheasant Run Wind, LLC Order No. 784 Filed Date: 7/10/15. Compliance Filing to be effective 7/11/ Compliance Filing to be effective 7/11/ Accession Number: 20150710–5157. 2015. 2015. Comments Due: 5 p.m. ET 7/31/15. Filed Date: 7/10/15. Filed Date: 7/10/15. Docket Numbers: ER15–2165–000. Accession Number: 20150710–5165. Accession Number: 20150710–5172. Applicants: FPL Energy Mower Comments Due: 5 p.m. ET 7/31/15. Comments Due: 5 p.m. ET 7/31/15. County, LLC. Docket Numbers: ER15–2172–000. Docket Numbers: ER15–2179–000. Description: Compliance filing: FPL Applicants: Lake Benton Power Applicants: Story Wind, LLC. Energy Mower County, LLC Order No. Partners II, LLC. Description: Compliance filing: Story 784 Compliance Filing to be effective 7/ Description: Compliance filing: Lake Wind, LLC Order No. 784 Compliance 11/2015. Benton Power Partners II, LLC Order Filing to be effective 7/11/2015. Filed Date: 7/10/15. No. 784 Compliance Filing to be Filed Date: 7/10/15. Accession Number: 20150710–5158. effective 7/11/2015. Accession Number: 20150710–5173. Comments Due: 5 p.m. ET 7/31/15. Filed Date: 7/10/15. Comments Due: 5 p.m. ET 7/31/15. Docket Numbers: ER15–2166–000. Accession Number: 20150710–5166. Docket Numbers: ER15–2180–000. Applicants: FPL Energy North Dakota Comments Due: 5 p.m. ET 7/31/15. Applicants: Tuscola Bay Wind, LLC. Wind, LLC. Docket Numbers: ER15–2173–000. Description: Compliance filing: Description: Compliance filing: FPL Applicants: Langdon Wind, LLC. Tuscola Bay Wind, LLC Order No. 784 Energy North Dakota Wind, LLC Order Description: Compliance filing: Compliance Filing to be effective 7/11/ No. 784 Compliance Filing to be Langdon Wind, LLC Order No. 784 2015. effective 7/11/2015. Compliance Filing to be effective 7/11/ Filed Date: 7/10/15. Filed Date: 7/10/15. 2015. Accession Number: 20150710–5174. Accession Number: 20150710–5159. Filed Date: 7/10/15. Comments Due: 5 p.m. ET 7/31/15. Comments Due: 5 p.m. ET 7/31/15. Accession Number: 20150710–5167. Docket Numbers: ER15–2181–000. Docket Numbers: ER15–2167–000. Comments Due: 5 p.m. ET 7/31/15. Applicants: Tuscola Wind II, LLC. Applicants: FPL Energy North Dakota Docket Numbers: ER15–2174–000. Description: Compliance filing: Wind II, LLC. Applicants: NextEra Energy Duane Tuscola Wind II, LLC Order No. 784 Description: Compliance filing: FPL Arnold, LLC. Compliance Filing to be effective 7/11/ Energy North Dakota Wind II, LLC Description: Compliance filing: 2015. Order No. 784 Compliance Filing to be NextEra Energy Duane Arnold, LLC Filed Date: 7/10/15. effective 7/11/2015. Order No. 784 Compliance Filing to be Accession Number: 20150710–5176. Comments Due: 5 p.m. ET 7/31/15. Filed Date: 7/10/15. effective 7/11/2015. Accession Number: 20150710–5160. Filed Date: 7/10/15. Docket Numbers: ER15–2182–000. Comments Due: 5 p.m. ET 7/31/15. Accession Number: 20150710–5168. Applicants: Wessington Wind Energy Center, LLC. Docket Numbers: ER15–2168–000. Comments Due: 5 p.m. ET 7/31/15. Description: Compliance filing: Applicants: FPL Energy Oliver Wind Docket Numbers: ER15–2175–000. Wessington Wind Energy Center, LLC I, LLC. Applicants: NextEra Energy Point Order No. 784 Compliance Filing to be Description: Compliance filing: FPL Beach, LLC. effective 7/11/2015. Energy Oliver Wind I, LLC Order No. Description: Compliance filing: Filed Date: 7/10/15. 784 Compliance Filing to be effective 7/ NextEra Energy Point Beach, LLC Order Accession Number: 20150710–5177. 11/2015. No. 784 Compliance Filing to be Comments Due: 5 p.m. ET 7/31/15. Filed Date: 7/10/15. effective 7/11/2015. Accession Number: 20150710–5161. Filed Date: 7/10/15. Docket Numbers: ER15–2183–000. Applicants: Wilton Wind II, LLC. Comments Due: 5 p.m. ET 7/31/15. Accession Number: 20150710–5169. Description: Compliance filing: Comments Due: 5 p.m. ET 7/31/15. Docket Numbers: ER15–2169–000. Wilton Wind II, LLC Order No. 784 Applicants: FPL Energy Oliver Wind Docket Numbers: ER15–2176–000. Compliance Filing to be effective 7/11/ II, LLC. Applicants: Osceola Windpower, LLC. 2015. Description: Compliance filing: FPL Description: Compliance filing: Filed Date: 7/10/15. Energy Oliver Wind II, LLC Order No. Osceola Windpower, LLC Order No. 784 Accession Number: 20150710–5178. 784 Compliance Filing to be effective 7/ Compliance Filing to be effective 7/11/ Comments Due: 5 p.m. ET 7/31/15. 11/2015. 2015. The filings are accessible in the Filed Date: 7/10/15. Filed Date: 7/10/15. Commission’s eLibrary system by Accession Number: 20150710–5162. Accession Number: 20150710–5170. clicking on the links or querying the Comments Due: 5 p.m. ET 7/31/15. Comments Due: 5 p.m. ET 7/31/15. docket number. Docket Numbers: ER15–2170–000. Docket Numbers: ER15–2177–000. Any person desiring to intervene or Applicants: FPL Energy South Dakota Applicants: Osceola Windpower II, protest in any of the above proceedings Wind, LLC. LLC. must file in accordance with Rules 211 Description: Compliance filing: FPL Description: Compliance filing: and 214 of the Commission’s Energy South Dakota Wind, LLC Order Osceola Windpower II, LLC Order No. Regulations (18 CFR 385.211 and No. 784 Compliance Filing to be 784 Compliance Filing to be effective 7/ 385.214) on or before 5:00 p.m. Eastern effective 7/11/2015. 11/2015. time on the specified comment date. Filed Date: 7/10/15. Filed Date: 7/10/15. Protests may be considered, but Accession Number: 20150710–5164. Accession Number: 20150710–5171. intervention is necessary to become a Comments Due: 5 p.m. ET 7/31/15. Comments Due: 5 p.m. ET 7/31/15. party to the proceeding. Docket Numbers: ER15–2171–000. Docket Numbers: ER15–2178–000. eFiling is encouraged. More detailed Applicants: Garden Wind, LLC. Applicants: Pheasant Run Wind, LLC. information relating to filing

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requirements, interventions, protests, Federal Energy Regulatory Commission, • Hand Delivery: To make special service, and qualifying facilities filings 888 First Street NE., Washington, DC arrangements for hand delivery or can be found at: http://www.ferc.gov/ 20426. delivery of boxed information, please docs-filing/efiling/filing-req.pdf. For This filing is accessible on-line at follow the instructions at http:// other information, call (866) 208–3676 http://www.ferc.gov, using the www.epa.gov/dockets/contacts.html. (toll free). For TTY, call (202) 502–8659. ‘‘eLibrary’’ link and is available for Additional instructions on Dated: July 13, 2015. electronic review in the Commission’s commenting or visiting the docket, along with more information about Nathaniel J. Davis, Sr., Public Reference Room in Washington, DC. There is an ‘‘eSubscription’’ link on dockets generally, is available at Deputy Secretary. the Web site that enables subscribers to http://www.epa.gov/dockets. [FR Doc. 2015–17691 Filed 7–17–15; 8:45 am] receive email notification when a FOR FURTHER INFORMATION CONTACT: BILLING CODE 6717–01–P document is added to a subscribed Jennifer Mclain, Acting Director, docket(s). For assistance with any FERC Antimicrobials Division (AD) (7510P), Online service, please email DEPARTMENT OF ENERGY Office of Pesticide Programs, [email protected], or call Environmental Protection Agency, 1200 Federal Energy Regulatory (866) 208–3676 (toll free). For TTY, call Pennsylvania Ave. NW., Washington, Commission (202) 502–8659. DC 20460–0001; main telephone Comment Date: 5:00 p.m. Eastern number: (703) 305–7090; email address: [Docket No. EL15–84–000] Time on August 10, 2015. [email protected]. Robert McNally, Director, Caithness Long Island II, LLC v. New Dated: July 13, 2015. Biopesticides and Pollution Prevention York Independent System Operator, Nathaniel J. Davis, Sr., Division (BPPD) (7511P), Office of Inc.; Notice of Complaint Deputy Secretary. Pesticide Programs, Environmental [FR Doc. 2015–17690 Filed 7–17–15; 8:45 am] Take notice that on July 10, 2015, Protection Agency, 1200 Pennsylvania BILLING CODE 6717–01–P pursuant to sections 206 and 306 of the Ave. NW., Washington, DC 20460–0001; Federal Power Act, 16 U.S.C. 824e and main telephone number: (703) 305– 825e and Rule 206 of the Federal Energy 7090; email address: BPPDFRNotices@ Regulatory Commission’s (Commission) ENVIRONMENTAL PROTECTION epa.gov. Rules of Practice and Procedure, 18 CFR AGENCY Susan Lewis, Director, Registration Division (RD) (7505P), Office of 385.206, Caithness Long Island II, LLC [EPA–HQ–OPP–2015–0021; FRL–9930–12] (Complainant) filed a formal complaint Pesticide Programs, Environmental against New York Independent System Pesticide Product Registration; Protection Agency, 1200 Pennsylvania Operator, Inc. (NYISO or Respondent) Receipt of Applications for New Active Ave. NW., Washington, DC 20460–0001; alleging that NYISO’s application of Ingredients main telephone number: (703) 305– certain interconnection requirements to 7090; email address: RDFRNotices@ the Class Year 2015 Interconnection AGENCY: Environmental Protection epa.gov. Facilities Study violates Commission Agency (EPA). The Division to contact is listed at the policy and the NYISO Open Access ACTION: Notice. end of each application in Unit II. Transmission Tariff. SUPPLEMENTARY INFORMATION: SUMMARY: EPA has received applications The Complainant certify that copies of I. General Information the complaint were served on the to register pesticide products containing contacts for NYISO as listed on the active ingredients not included in any A. Does this action apply to me? Commission’s list of Corporate Officials. currently registered pesticide products. Pursuant to the Federal Insecticide, You may be potentially affected by Any person desiring to intervene or to this action if you are an agricultural protest this filing must file in Fungicide, and Rodenticide Act (FIFRA), EPA is hereby providing notice producer, food manufacturer, or accordance with Rules 211 and 214 of pesticide manufacturer. The following the Commission’s Rules of Practice and of receipt and opportunity to comment on these applications. list of North American Industrial Procedure (18 CFR 385.211, 385.214). Classification System (NAICS) codes is DATES: Comments must be received on Protests will be considered by the not intended to be exhaustive, but rather or before August 19, 2015. Commission in determining the provides a guide to help readers appropriate action to be taken, but will ADDRESSES: Submit your comments, determine whether this document not serve to make protestants parties to identified by docket identification (ID) applies to them. Potentially affected the proceeding. Any person wishing to number EPA–HQ–OPP–2015–0021 and entities may include: become a party must file a notice of the File Symbol of interest as shown in • Crop production (NAICS code 111). intervention or motion to intervene, as the body of this document, by one of the • Animal production (NAICS code appropriate. The Respondent’s answer following methods: 112). and all interventions, or protests must • Federal eRulemaking Portal: http:// • Food manufacturing (NAICS code be filed on or before the comment date. www.regulations.gov. Follow the online 311). The Respondent’s answer, motions to instructions for submitting comments. • Pesticide manufacturing (NAICS intervene, and protests must be served Do not submit electronically any code 32532). on the Complainants. information you consider to be The Commission encourages Confidential Business Information (CBI) B. What should I consider as I prepare electronic submission of protests and or other information whose disclosure is my comments for EPA? interventions in lieu of paper using the restricted by statute. 1. Submitting CBI. Do not submit this ‘‘eFiling’’ link at http://www.ferc.gov. • Mail: OPP Docket, Environmental information to EPA through Persons unable to file electronically Protection Agency Docket Center (EPA/ regulations.gov or email. Clearly mark should submit an original and 5 copies DC), (28221T), 1200 Pennsylvania Ave. the part or all of the information that of the protest or intervention to the NW., Washington, DC 20460–0001. you claim to be CBI. For CBI

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information in a disk or CD–ROM that Incorporated Protectant; Papaya 1, Gothenburg, SE43183, Sweden. you mail to EPA, mark the outside of the Ringspot Virus Resistance Gene (Papaya Product name: Selektope. Active disk or CD–ROM as CBI and then Ringspot Virus Coat Protein Gene) in ingredient: Antimicrobial and identify electronically within the disk or X17–2 Papaya at 0.00000005%. Medetomidine at 99.8%. Proposed CD–ROM the specific information that Proposed classification/Use: None. classification/Use: Antifoulant Paint is claimed as CBI. In addition to one Contact: BPPD. Contact: AD. complete version of the comment that File Symbol: 89046–G. Docket ID File Symbol: 91581–E. Docket ID includes information claimed as CBI, a number: EPA–HQ–OPP–2015–0419. number: 2015–0367. Applicant: I-Tech copy of the comment that does not Applicant: AEF Global, Inc. c/o SciReg, AB, Pepparedsleden 1, Gothenburg, contain the information claimed as CBI Inc., 12733 Director’s Loop, SE43183, Sweden. Product name: CMP– must be submitted for inclusion in the Woodbridge, VA 22192. Product name: 2 RED. Active ingredient: Antimicrobial public docket. Information so marked Bioprotec Technical. Active ingredient: and Medetomidine at 4.41%. Proposed will not be disclosed except in Manufacturing Use; Bacillus classification/Use: Antifoulant Paint accordance with procedures set forth in thuringiensis subspecies kurstaki strain Contact: AD. 40 CFR part 2. EVB–113–19 at 99.2%. Proposed File Symbol: 56228–AN. Docket ID 2. Tips for preparing your comments. classification/Use: None. Contact: number: EPA–HQ–OPP–2015–0319. When preparing and submitting your BPPD. Applicant: U.S. Department of comments, see the commenting tips at File Symbol: 71512–EI and 71512–EO. Agriculture, Animal and Plant Health http://www.epa.gov/dockets/ Docket ID number: EPA–HQ–OPP– Inspection Service, Policy and Program comments.html. 2015–0383. Applicant: ISK Biosciences Development, Environmental and Risk Corporation, 7470 Auburn Road, Suite II. Registration Applications Analysis Services, Unit 149, 4700 River A, Concord, Ohio 44077. Product Road, Riverdale, MD 20737. Product EPA has received applications to names: Technical Tolpyralate Herbicide name: Sodium Nitrite Technical. Active register pesticide products containing and Tolpyralate 400SC Herbicide. ingredient: Rodenticide, Sodium Nitrite active ingredients not included in any Active ingredient: Herbicide and at 99%. Proposed classification/Use: currently registered pesticide products. Tolpyralate at 97% (Technical Manufacturing use. Contact: RD. Pursuant to the provisions of FIFRA Herbicide) and 37% (400SC Herbicide). section 3(c)(4) (7 U.S.C. 136a(c)(4)), EPA Proposed classification/Use: Corn (field Authority: 7 U.S.C. 136 et seq. is hereby providing notice of receipt and corn, sweet corn, and popcorn). Contact: Dated: July 8, 2015. opportunity to comment on these RD. Jennifer Mclain, applications. Notice of receipt of these File Symbol: 10163–GGG. Docket ID Acting Director, Antimicrobials Division, applications does not imply a decision number: EPA–HQ–OPP–2015–0226. Office of Pesticide Programs. by the Agency on these applications. Applicant: Gowan Company, P.O. Box [FR Doc. 2015–17738 Filed 7–17–15; 8:45 am] File Symbol: 70644–L. Docket ID 5569, Yuma, AZ 85366. Product name: BILLING CODE 6560–50–P number: EPA–HQ–OPP–2015–0417. Benzobicyclon Technical. Active Applicant: LidoChem, Inc., 20 Village ingredient: Herbicide, benzobicyclon at Ct., Hazlet, NJ 07730. Product name: 98%. Proposed classification/Use: FEDERAL RESERVE SYSTEM Varnimo® ST. Active ingredient: Formulating into end-use products for Nematocide and Plant Growth use on rice (grain, straw). Contact: RD. Agency Information Collection Regulator; Bacillus amyloliquefaciens File Symbol: 10163–GGU. Docket ID Activities: Announcement of Board strain PTA–4838 at 73.4%. Proposed number: EPA–HQ–OPP–2015–0226. Approval Under Delegated Authority classification/Use: None. Contact: Applicant: Gowan Company, P.O. Box and Submission to OMB BPPD. 5569, Yuma, AZ 85366. Product name: File Symbol: 70644–A. Docket ID Butte Herbicide. Active ingredients: AGENCY: Board of Governors of the number: EPA–HQ–OPP–2015–0417. Herbicide, benzobicyclon at 3% and Federal Reserve System. Applicant: LidoChem, Inc., 20 Village halosulfuron at .64%. Proposed SUMMARY: Notice is hereby given of the Ct., Hazlet, NJ 07730. Product name: classification/Use: Rice (grain, straw). final approval of a proposed information Varnimo® WSP. Active ingredient: Contact: RD. collection by the Board of Governors of Fungicide, Plant Growth Regulator, and File Symbols: 59639–ENR, 59639– the Federal Reserve System (Board) Nematocide; Bacillus amyloliquefaciens ENN, 59639–ROO, and 59639–ROI: under the Office of Management and strain PTA–4838 at 0.29%. Proposed Docket ID number: EPA–HQ–OPP– Budget (OMB) delegated authority. classification/Use: None. Contact: 2014–0285. Applicant: Valent USA Board-approved collections of BPPD. Corporation, 1600 Riviera Ave., Suite information are incorporated into the File Symbol: 70644–T. Docket ID 200, Walnut Creek, CA 94596. Product official OMB inventory of currently number: EPA–HQ–OPP–2015–0417. names: S 2200 Fungicide Technical, S approved collections of information. Applicant: LidoChem, Inc., 20 Village 2200 3.2 FS Fungicide, S 2200 4SC VPP Copies of the Paperwork Reduction Act Ct., Hazlet, NJ 07730. Product name: Fungicide, and S 2200 4SC Ag Submission, supporting statement and Varnimo® Technical. Active ingredient: Fungicide. Active ingredient: Fungicide, approved collection of information Manufacturing Use; Bacillus S 2200 (Mandestrobin) at 88.8%, 35.1%, instruments are placed into OMB’s amyloliquefaciens strain PTA–4838 at 43.4% and 43.4%, respectively. public docket files. The Federal Reserve 73.4%. Proposed classification/Use: Proposed classification/Use: Small fruit may not conduct or sponsor, and the None. Contact: BPPD. vine climbing, except fuzzy kiwifruit respondent is not required to respond File Symbol: 84427–R. Docket ID crop subgroup 13–F, Low growing berry to, an information collection that has number: EPA–HQ–OPP–2015–0418. subgroup 13–07G, Rapeseed Crop been extended, revised, or implemented Applicant: University of Florida, Subgroup 20A, Turf, and Seed on or after October 1, 1995, unless it Institute of Food and Agricultural Treatment. Contact: RD. displays a currently valid OMB control Sciences, 700 Experiment Station Rd., File Symbol: 91581–R. Docket ID number. Lake Alfred, FL 33850. Product name: number: EPA–HQ–OPP–2015–0367. FOR FURTHER INFORMATION CONTACT: X17–2 Papaya. Active ingredient: Plant- Applicant: I-Tech AB, Pepparedsleden Federal Reserve Board Clearance

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Officer—Nuha Elmaghrabi—Office of Information Act (FOIA) (5 U.S.C. data. Third, data collected under the FR the Chief Data Officer, Board of 552(b)(4)). 2420 report also represent an important Governors of the Federal Reserve Abstract: The FR 2420 is a source of information on individual System, Washington, DC 20551, (202) transaction-based report that currently depository institutions’ borrowing rates, 452–3829. Telecommunications Device collects daily liability data on federal which is expected to allow for more for the Deaf (TDD) users may contact funds transactions, Eurodollar effective monitoring of firm-specific (202) 263–4869, Board of Governors of transactions, and certificates of deposit liquidity risks for purposes of the Federal Reserve System, (CD) issuance from (1) domestically supervisory surveillance. Washington, DC 20551. chartered commercial banks and thrifts Given these critical uses for the data, OMB Desk Officer—Shagufta that have $26 billion or more in total the Federal Reserve is seeking to ensure Ahmed—Office of Information and assets and (2) U.S. branches and that the reporting panel captures entities Regulatory Affairs, Office of agencies of foreign banks with total that are meaningfully involved in Management and Budget, New third-party assets of $900 million or unsecured money markets and that it Executive Office Building, Room 10235, more. FR 2420 data are used in the remains robust to changes in borrower 725 17th Street NW., Washington, DC analysis of current money market composition in these markets. 20503. conditions and will allow the Federal Additional U.S. bank reporters are Final approval under OMB delegated Reserve Bank of New York (FRBNY) to necessary to provide insight into a authority of the extension for three calculate and publish interest rate distinct and important segment of the years, with revision, of the following statistics for selected money market federal funds market. The federal funds information collection: instruments. borrowing in this segment can represent Report title: Report of Selected Money Current Actions: On April 7, 2015, the a significant proportion of overall Market Rates. Federal Reserve published a notice in activity in certain market environments, Agency form number: FR 2420. the Federal Register (80 FR 18620) and can occur at rates that are distinct OMB Control number: 7100–0357. requesting public comment for 60 days from funding activity conducted by Effective Date: October 20, 2015, for on the extension, with revision, of the other institutions. However, the Federal Reserve understands the need to strike Part A-Federal Funds, Part AA-Selected FR 2420. The comment period for this a balance between reporting burden and Borrowings from Non-Exempt Entities, notice expired on June 8, 2015. The the collection of information required to and Part B-Eurodollars. January 15, Federal Reserve received four comment fulfill its policy objectives. As such, 2016, for Part C-Time Deposits and letters on the proposed revisions of the adjustments are being made to the asset- Certificates of Deposit. FR 2420; three from trade organizations size thresholds to reduce reporting Frequency: Daily. and one from a U.S. branch of a foreign bank. Substantive comments on the data burden, as discussed below. In addition, Reporters: Domestically chartered exceptions may be made for those commercial banks and thrifts that have collection are discussed in detail below. In addition, several technical comments institutions that meet the asset-size $18 billion or more in total assets, or $5 threshold but can demonstrate that they billion or more in assets and meet were received and the Federal Reserve will update the final reporting forms have an ongoing business model that certain unsecured borrowing activity results in a negligible amount of activity thresholds; U.S. branches and agencies and instructions for these comments, as appropriate. in these markets. The ‘‘Reporting of foreign banks with total third-party Exception’’ section below provides more assets of $2.5 billion or more. Summary of Public Comments information on how an exception may Estimated annual reporting hours: be obtained. Commercial banks and thrifts—34,200 Report Cost-Benefit hours; U.S. branches and agencies of A trade organization asked if the Asset Size and Activity Thresholds foreign banks—35,100 hours; marginal increase in information from A trade organization wrote that the International Banking Facilities—19,750 adding new U.S. bank reporters asset-size threshold imposes costs on hours; Significant banking outweighs the increase in costs and institutions that may not have organizations—900 hours. burden on these additional institutions substantial activity and noted that, Estimated average hours per response: affected by the proposal. While the according to Call Report data, Commercial banks and thrifts—1.8 Federal Reserve is sensitive to the institutions with between $15 billion hours; U.S. branches and agencies of reporting burden of the affected and $26 billion in assets hold only foreign banks—1.8 hours; International depository institutions, revisions to the about five percent of total federal funds Banking Facilities—1.0 hour; Significant data are being made to fulfill high- purchased. This trade organization banking organizations—1.8 hours. priority policy objectives. First, the noted that the activity threshold Number of respondents: Commercial expanded and enhanced data collection approach is more targeted and should be banks and thrifts—76; U.S. branches is expected to improve unsecured used for any institution to which the and agencies of foreign banks—78; money market monitoring and augment Federal Reserve intends to extend International Banking Facilities—79; the ability of the Federal Reserve Bank reporting requirements. Significant banking organizations—2. of New York, on behalf of the Federal Asset-size thresholds create a stable General description of report: The FR Reserve, to analyze these markets and panel of reporters, by ensuring that 2420 is a mandatory report that is implement monetary policy. banks of meaningful size will be authorized by sections 9 and 11 of the Second, the data set is expected to consistently required to report activity Federal Reserve Act (12 U.S.C. 324 and provide robust transaction data for in a timely manner. This stable panel of 248(a)(2)), sections 7(c)(2) and 8(a) of calculating the effective federal funds banks is necessary to effectively analyze the International Banking Act (12 U.S.C. rate (EFFR), an improvement over the trends in unsecured funding markets 3105(c)(2) and 3106(a)), and section 5(c) current rate constructed from brokered and publish the EFFR and OBFR. The of the Bank Holding Company Act (12 data. The collection also is expected to Federal Reserve proposed a lower asset- U.S.C. 1844(c)(1)(A)). Individual allow for the calculation of a new size threshold in order to create a more respondent data are regarded as overnight bank funding rate (OBFR) that comprehensive dataset that captures an confidential under the Freedom of uses both federal funds and Eurodollar important segment of the federal funds

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market that is not currently covered in writing and provide a look back of the to support the implementation of the existing criteria. Collectively, the data for at least two quarters and monetary policy and daily market federal funds activity of domestic provide justification on why continuing monitoring. Therefore, the Federal depository institutions with assets to provide these data causes an undue Reserve is retaining the 7 a.m. deadline between $15 billion and $26 billion can burden. in the final report. The FR 2420 data be notable. Call Report data suggest that provide a key insight on the previous Implementation Date the aggregate amount of federal funds day’s unsecured market activity in the activity of banks in this asset size varies Two trade organizations requested morning when the Federal Reserve is and has, at times, represented more than additional time to implement the monitoring markets for the purposes of 10 percent of federal funds activity. In revisions. One organization noted that implementing monetary policy. In addition, in the current market the proposed timeline would be difficult addition, in 2016, the data will be used environment, borrowing by these to implement, as the recommended as the source for daily calculation of the institutions often occurs at different revisions add and redefine several EFFR and OBFR. The EFFR is published rates than seen in the current sample elements of the FR 2420 report. This in the morning in order to provide the and represents an important segment of organization stated that the current market with a timely view on the the market that the current FR 2420 panel of banks would need two quarters previous day’s activity. report does not capture. after final requirements and newly Activity thresholds, on the other covered institutions would need one Supervisory Purpose hand, are beneficial for providing year. A second organization stated that A trade organization objected to the insight into activity that is outside the although the proposal was well- broadening of the purpose of the scope of the regular panel of reporters, developed and vetted, it would be reporting form to include a supervisory and represents an important supplement difficult to commit systems and component. According to this to the asset-size thresholds. However, personnel until the final Federal organization, the timing and frequency activity thresholds used alone can create Register notice. This organization asked of FR 2420 reporting makes it difficult gaps in reporting and a more the Federal Reserve to re-assess the for covered institutions to subject data inconsistent panel of banks. These proposed date, with not less than 6 to proper regulatory reporting controls. thresholds necessarily require a look- months from the final requirements for The trade organization would prefer the back period to measure activity and implementation. Federal Reserve to use the supervisory some forward period to prepare for The revisions to the FR 2420 data are and reporting framework already in reporting; thus, there is a significant lag being implemented to meet high priority place to monitor individual firm between the threshold for activity being policy objectives. Most of the reporters liquidity conditions. The organization met and the commencement of under the new criteria are active requested clarification on the reporting. The Federal Reserve reporters under the existing criteria. interaction of the FR 2420 with the FR considered relying more heavily on an However, in order to provide the lead 2052b, which eliminated the activity threshold and found that the time for new reporters to prepare for requirement for daily reporting from panel of banks was more inconsistent reporting and still fulfill these institutions with between $15 to $26 and the data capture was less complete. objectives, the initially proposed billion in total assets after Nonetheless, the Federal Reserve reporting date of September 9, 2015 will acknowledging through the FR 2052b understands the need to find a balance be extended to October 20, 2015 for Part implementation process that daily between the burden being placed on A–Federal Funds, Part AA–Selected reporting is burdensome and reporting institutions and the Borrowings from Non-Exempt Entities, unnecessary for these institutions. The achievement of reporting objectives. In and Part B–Eurodollars. The reporting organization also wrote that given light of the burden on smaller date for Part C–Time Deposits and significant changes being implemented institutions of FR 2420 reporting, the Certificates of Deposit will be extended to the FR 2052a, banks do not have Federal Reserve will retain the asset-size until January 15, 2016. This delay will enough information to comment on thresholds, but raise the minimum allow reporters to focus on the changes whether the FR 2420 report is reporting threshold for domestically applicable to the most time-sensitive duplicative or complementary. The chartered commercial banks and thrifts parts of the report. organization noted that not all from $15 billion to $18 billion. With institutions that would be required to this revised criteria, U.S. institutions Submission Deadline file the FR 2420 are required to file the with between $15 billion and $18 A trade organization noted the 7 a.m. FR 2052b. Furthermore, according to billion in assets will now only report if deadline imposes administrative costs this organization, the FR 2420 collection they meet the activity threshold. This for covered institutions and these costs encompasses institutions for whom the change in threshold will result in a are magnified, on a relative basis, for Federal Reserve is not the primary reduction in the number of additional, smaller institutions, which have fewer regulator, and it is unclear by which smaller institutions being required to resources. A second organization stated process the Federal Reserve will report under the asset-size threshold. that banks continue to experience coordinate with the other banking challenges in meeting the 7 a.m. agencies. Reporting Exception deadline for federal funds reporting as FR 2420 data are used by the Federal A trade organization asked for it conflicts with normal batch Reserve to carry out both monetary clarification on how and with what processing. This organization noted the policy and supervisory functions. frequency institutions with ongoing time will also be a challenge for the Although daily reporting for smaller business models that result in negligible expanded Eurodollar reporting institutions may not be required for activity can apply for exceptions to requirements. supervisory surveillance on the FR filing the FR 2420 report. Institutions After considering these comments, the 2052b, reporting at a daily frequency is can request a review of their reporting Federal Reserve determined that federal required on the FR 2420 for analysis of requirement at any point that they funds and Eurodollar data are needed by current money market conditions and believe the reporting is an unreasonable 7 a.m. each business day for the publication of the EFFR and OBFR. burden. Requests should be made in preceding day’s reportable transactions Institutions with asset sizes under the

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$26 billion represent an important and FHLBs, deposits from non-financial Dated: July 16, 2015. segment of the federal funds market that corporations, and the office identifier on James Petrick, is not currently captured by the FR 2420 Part B. Each of these definitions will be General Counsel, Federal Retirement Thrift report, and collecting their borrowing updated with further clarification in the Investment Board. transactions is necessary for reporting instructions. The organization [FR Doc. 2015–17870 Filed 7–16–15; 4:15 pm] understanding unsecured money also asked for a formal process for BILLING CODE 6760–01–P markets. As noted above, the minimum Frequently Asked Questions. The asset-size threshold for reporting by U.S. Federal Reserve will have a process to institutions on the FR 2420 is being document reporting questions and FEDERAL TRADE COMMISSION raised to $18 billion in order to balance communicate these to reporters. Lastly, the need to capture this information the organization asked for the Reporting Agency Information Collection with the reporting burden on smaller Central application to be open for Activities; Proposed Collection; institutions. This higher minimum testing as soon as possible. The Comment Request threshold will eliminate the need for application will be available for testing daily reporting for many smaller at least one month before the AGENCY: Federal Trade Commission institutions. Furthermore, including a implementation dates. (‘‘FTC’’ or ‘‘Commission’’). supervisory component to the FR 2420 One commenter provided additional ACTION: Notice. report is not expected to increase, in comments outside the scope of the data itself, the burden on institutions collection proposal that focused on the SUMMARY: The FTC intends to ask the required to file an FR 2420 since all calculation of the published rates. Office of Management and Budget report submissions are subject to (‘‘OMB’’) to extend through November Board of Governors of the Federal Reserve 30, 2018, the current Paperwork control, audit, and governance System, July 15, 2015. protocols. Reduction Act (‘‘PRA’’) clearance for the Robert deV. Frierson, Utilization of the FR 2420 report for information collection requirements in supervisory purposes will complement Secretary of the Board. the FTC Red Flags, Card Issuers, and existing liquidity monitoring reports [FR Doc. 2015–17713 Filed 7–17–15; 8:45 am] Address Discrepancies Rules 1 and allow the Federal Reserve to reduce BILLING CODE 6210–01–P (‘‘Rules’’). That clearance expires on reporting requirements in those reports. November 30, 2015. Specifically, with regard to the DATES: Comments must be submitted by interaction between the FR 2420 and FR FEDERAL RETIREMENT THRIFT September 18, 2015. 2052, the Federal Reserve has reviewed INVESTMENT BOARD ADDRESSES: Interested parties may file a the current and proposed reports and Sunshine Act; Notice of Meeting comment online or on paper by confirms there is no duplicated following the instructions in the information or material overlaps TIME AND DATE: Request for Comment part of the between these reports. A subset of the 9:00 a.m. (Eastern Time) July 27, 2015. SUPPLEMENTARY INFORMATION section FR 2420 pricing data was already being below. Write ‘‘Red Flags Rule, PRA collected on the FR 2052a as part of PLACE: 10th Floor Board Meeting Room, 77 K Street NE., Washington, DC 20002. Comment, Project No. P095406’’ on your supervisory liquidity monitoring. Going comment, and file your comment online forward, information contained on the STATUS: Parts will be open to the public and parts closed to the public. at https://ftcpublic.commentworks.com/ FR 2420 will replace certain information ftc/RedFlagsPRA by following the MATTERS TO BE CONSIDERED: currently gathered on the FR 2052a, as instructions on the web-based form. If these data elements will be dropped Open to the Public you prefer to file your comment on from the FR 2052a collection. Pricing paper, mail or deliver your comment to information on the FR 2052b will not 1. Approval of the Minutes of the June the following address: Federal Trade change, as that data is not similar to FR 25, 2015 Board Member Meeting Commission, Office of the Secretary, 2420 data. However, the amended FR 2. Monthly Reports 600 Pennsylvania Avenue NW., Suite 2420 will offer greater insight on the (a) Monthly Participant Activity CC–5610 (Annex J), Washington, DC borrowing costs for these firms’ Report 20580, or deliver your comment to the liabilities. Pricing information, when (b) Legislative Report following address: Federal Trade used in tandem with liquidity data, is 3. Quarterly Reports (a) Investment Policy Report Commission, Office of the Secretary, an area that supervisors review when (b) Vendor Financials Constitution Center, 400 7th Street SW., gauging a firm’s overall liquidity profile. (c) Audit Status 5th Floor, Suite 5610 (Annex J), Rapid changes in pricing can indicate a (d) Budget Review Washington, DC 20024. firm is entering a period of constrained (e) Project Activity Report FOR FURTHER INFORMATION CONTACT: market access and subsequent liquidity 4. Withdrawal Options stress. 5. Mutual Fund Window Project and Requests for additional information For institutions whose primary Policy should be addressed to Steven Toporoff, regulator is not the Federal Reserve and 6. Investment Consultant Memo Attorney, Bureau of Consumer who do not file FR 2052 reports, the FR 7. Impact of Proposed Changes to G Protection, (202) 326–2252, Federal 2420 data is intended primarily for Fund Trade Commission, 600 Pennsylvania monetary policy purposes. The Federal 8. Investment Advice Discussion Avenue, Washington, DC 20580. Reserve does not plan to share these SUPPLEMENTARY INFORMATION: Closed to the Public data with other agencies. 9. Litigation I. Overview of the Rules Clarifications and Other Issues 10. Security The Red Flags Rule requires financial One trade organization asked for 11. Personnel institutions and certain creditors to clarification on several definitions, CONTACT PERSON FOR MORE INFORMATION: develop and implement written Identity including counterparty types, embedded Kimberly Weaver, Director, Office of options on CDS, borrowings from GSEs External Affairs, (202) 942–1640. 1 16 CFR 681.1; 16 CFR 681.2; 16 CFR part 641.

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Theft Prevention Programs (‘‘Program’’). which there is a reasonably foreseeable agency requests or requirements to The Card Issuers Rule requires credit risk of identity theft. Each financial submit reports, keep records, or provide and debit card issuers (‘‘card issuers’’) institution and covered creditor that has information to a third party. 44 U.S.C. to assess the validity of notifications of covered accounts must create a written 3502(3); 5 CFR 1320.3(c). The figures address changes under certain Program that contains reasonable below reflect FTC staff’s estimates of the circumstances. The Address policies and procedures to identify hours burden and labor costs to Discrepancy Rule provides guidance on relevant indicators of the possible complete the tasks described above that what users of consumer reports must do existence of identity theft (‘‘red flags’’); fall within reporting, disclosure, or when they receive a notice of address detect red flags that have been recordkeeping requirements. FTC staff discrepancy from a nationwide incorporated into the Program; respond believes that the Rules impose consumer reporting agency (‘‘CRA’’). appropriately to any red flags that are negligible capital or other non-labor Collectively, these three anti-identity detected to prevent and mitigate costs, as the affected entities are likely theft provisions are intended to prevent identity theft; and update the Program to have the necessary supplies and/or impostures from misusing another periodically to ensure it reflects change equipment already (e.g., offices and person’s personal information for a in risks to customers. computers) for the information fraudulent purpose. The Red Flags Rule also requires collection described herein. The Rules implement sections 114 financial institutions and covered Overall estimated burden hours and 315 of the Fair Credit Reporting Act creditors to: (1) Obtain approval of the regarding sections 114 and 315, (‘‘FCRA’’), 15 U.S.C. 1681 et seq., to initial written Program by the board of combined, total 2,296,863 hours and the require businesses to undertake directors; a committee thereof or, if associated estimated labor costs are measures to prevent identity theft and there is no board, an appropriate senior $92,465,982. Staff assumes that affected increase the accuracy of consumer employee; (2) ensure oversight of the entities will already have in place, reports. development, implementation, and independent of the Rule, equipment and Since promulgation of the original administration of the Program; and (4) supplies necessary to carry out the tasks Rule, President Obama signed the Red exercise appropriate and effective necessary to comply with it. Flag Program Clarification Act of 2010 oversight of service provider (‘‘Clarification Act’’), which narrowed arrangements. A. FCRA Section 114 the definition of ‘‘creditor’’ for purposes In addition, the Rules implement the 1. Estimated Hours Burden—Red Flags of the Red Flags Rule. Specifically, the section 114 requirement that card Rule Clarification Act limits application of issuers generally must assess the As noted above, the Rule requires the Red Flags Rule to creditors that validity of change of address financial institutions and certain regularly and in the ordinary course of notifications. Specifically, if the card creditors with covered accounts to business: (1) Obtain or use consumer issuer receives a notice of change of develop and implement a written reports, directly or indirectly, in address for an existing account and, Program. Under the FCRA, financial connection with a credit transaction; (2) within a short period of time (during at institutions over which the FTC has furnish information to consumer least the first 30 days), receives a jurisdiction include state chartered reporting agencies in connection with a request for an additional or replacement credit unions and certain insurance credit transaction; or (3) advance funds card for the same account, the issuer companies. to or on behalf of a person, based on a must follow reasonable policies and Although narrowed by the person’s obligation to repay the funds to procedures to assess the validity of the Clarification Act, the definition of or on behalf of a person, based on a change of address. ‘‘creditor’’ still covers a broad array of person’s obligation to repay the funds or B. FCRA Section 315 entities. Moreover, the Clarification Act on repayment from specific property In implementing section 315 of the does not set forth any exemptions from pledged by or on the person’s behalf. FCRA, the Rules require each user of Rule coverage. Rather, application of the This third prong does not include a consumer reports to have reasonable Rule depends upon an entity’s course of creditor that advances funds on behalf policies and procedures in place to conduct, not its status as a particular of a person for expenses incidental to a employ when the user receives a notice type of business. For these reasons, it is service provided by the creditor to that of address discrepancy from a CRA. difficult to determine precisely the person. Specifically, each user of consumer number of creditors subject to the FTC’s II. Description of Collection of reports must develop reasonable jurisdiction. There are numerous small Information policies and procedures to: (1) Enable businesses under the FTC’s jurisdiction the user to form a reasonable belief that that may qualify as ‘‘creditors,’’ and A. FCRA Section 114 a consumer report relates to the there is no formal way to track them. The Red Flags Rule requires financial consumer about whom it has requested Nonetheless, FTC staff estimates that the institutions and covered creditors to the report, when the user receives a Rule’s requirement to have a written develop and implement a written notice of address discrepancy; and (2) Program affects 6,298 financial Program to detect, prevent, and mitigate furnish an address for the consumer that institutions 2 and 162,295 creditors.3 identity theft in connection with the user has reasonably confirmed is existing accounts or the opening of new accurate to the CRA from which it 2 The total number of financial institutions is accounts. Under the Rule, financial receives a notice of address discrepancy, derived from an analysis of state credit unions and institutions and certain creditors must insurers within the FTC’s jurisdiction using 2012 if certain conditions are met. Census data (‘‘County Business Patterns,’’ U.S.) and conduct a periodic risk assessment to III. Burden Estimates other online industry data. determine if they maintain ‘‘covered 3 The total number of creditors (162,295) is accounts.’’ The Rule defines the term Under the PRA, 44 U.S.C. 3501–3521, derived from an analysis of 2012 Census data and ‘‘covered account’’ as either: (1) A Federal agencies must get OMB industry data for businesses or organizations that approval for each collection of market goods and services to consumers or other consumer account that is designed to businesses or organizations subject to the FTC’s permit multiple payments or information they conduct or sponsor. jurisdiction, reduced by entities not likely to: (1) transactions, or (2) any other account for ‘‘Collection of information’’ includes Continued

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To estimate burden hours for the Red accounts, must develop a Program; Thus, the total average annual Flags Rule under section 114, FTC staff however, they likely will only need a estimated burden for Section 114 is divided affected entities into two streamlined Program. FTC staff 1,420,068 hours. categories, based on the nature of their estimates that such entities will require 3. Estimated Cost Burden—Red Flags business: (1) Entities that are subject to one hour to create such a Program, with and Card Issuers Rules high risk of identity theft and (2) entities an annual recurring burden of five that are subject to a low risk of identity minutes. Training staff of low-risk The FTC staff estimates labor costs by theft, but have covered accounts that entities to be attentive to future risks of applying appropriate estimated hourly will require them to have a written identity theft should require no more cost figures to the burden hours Program. than 10 minutes in an initial year, with described above. It is difficult to calculate with precision the labor costs a. High-Risk Entities an annual recurring burden of five minutes. FTC staff further estimates that associated with compliance with the FTC staff estimates that high-risk these entities will require, initially, 10 Rule, as they entail varying 4 entities will each require 25 hours to minutes to prepare an annual report, compensation levels of management create and implement a written with an annual recurring burden of five (e.g., administrative services, computer Program, with an annual recurring minutes. and information systems, training and burden of one hour. FTC staff development) and/or technical staff Thus, the estimated hours burden for anticipates that these entities will (e.g., computer support specialists, low-risk entities is as follows: incorporate into their Program policies systems analysts, network and computer and procedures that they likely already • 60,974 low risk entities that have systems administrators) among have in place. Further, FTC staff covered account subject to the FTC’s companies of different sizes. FTC staff estimates that preparation for an annual jurisdiction at an average annual burden assumes that for all entities, report will require each high-risk entity of approximately 37 minutes per entity professional technical personnel and/or four hours initially, with an annual [average annual burden over 3-year management personnel will create and recurring burden of one hour. Finally, clearance period for creation and implement the Program, prepare the FTC staff believes that many of the high- implementation of streamlined Program annual report, and train employees, at risk entities, as part of their usual and ((60+5+5)/3), plus average annual an hourly rate of $54.7 customary business practice, already burden over 3-year clearance period for Based on the above estimates and take steps to minimize losses due to staff training ((10+5+5)/3), plus average assumptions, the total annual labor fraud, including conducting employee annual burden over 3-year clearance costs for all categories of covered training. Accordingly, only relevant staff period for preparing annual report entities under the Red Flags and Card need be trained to implement the ((10+5+5)/3], for a total of 37,600 hours. Issuers Rules for Section 114 is Program: For example, staff already $76,683,672 (1,420,068 hours x $54). trained as part of a covered entity’s anti- 2. Estimated Hours Burden—Card fraud prevention efforts do not need to Issuers Rule B. FCRA Section 315—The Address Discrepancy Rule be re-trained as incrementally needed. As noted above, section 114 also FTC staff estimates that training requires financial institutions and As discussed above, the Rule’s connected with the implementation of a covered creditors that issue credit or implementation of Section 315 provides Program of a high-risk entity will debit cards to establish policies and guidance on reasonable policies and require four hours, and annual training procedures to assess the validity of a procedures that a user of consumer thereafter will require one hour. change of address request, including reports must employ when a user Thus, estimated hours for high-risk notifying the cardholder or using receives a notice of address discrepancy entities are as follows: from a CRA. Given the broad scope of • 101,328 high-risk entities subject to another means of assessing the validity of the change of address. users of consumer reports, it is difficult the FTC’s jurisdiction at an average to determine with precision the number • FTC staff estimates that the Rule annual burden of 13 hours per entity of users of consumer reports that are affects as many as 16,301 6 [average annual burden over 3-year card issues subject to the FTC’s jurisdiction. As clearance period for creation and within the FTC’s jurisdiction. FTC staff noted above, there are numerous small implementation of a Program ((25+1+1)/ believes that most of these card issuers businesses under the FTC’s jurisdiction, 3), plus average annual burden over 3- already have automated the process of and there is no formal way to track year clearance period for staff training notifying the cardholder or are using them; moreover, as a whole, the entities ((4+1+1)/3), plus average annual burden another means to assess the validity of under the FTC’s jurisdiction are so over 3-year clearance period for the change of address, such that varied that there are no general sources preparing an annual report ((4+1+1)/3)], implementation will pose no further that provide a record of their existence. for a total of 1,317,264 hours. burden. Nevertheless, taking a Nonetheless, FTC staff estimates that the conservative approach, FTC staff b. Low-Risk Entities Rule’s implementation of section 315 estimates that it will take each card affects approximately 1,875,275 users of Entities that have a minimal risk of issuer 4 hours to develop and identity theft,5 but that have covered implement policy and procedures to 7 This estimate is based on mean hourly wages assess the validity of a change of found at http://www.bls.gov/news.release/ Obtain credit reports, report credit transactions, or address request for a total burden of ocwage.t01.htm (‘‘Occupational Employment and advance loans; and (2) entities not likely to have 65,204 hours. Wages—May 2014,’’ U.S. Department of Labor, covered accounts under the Rule. released March 2015, Table 1 (‘‘National 4 High-risk entities include, for example, financial employment and wage data from the Occupational institutions within the FTC’s jurisdiction and rental and leasing firms, office supplies and Employment Statistics survey by occupation, May utilities, motor vehicle dealerships, stationery stores, fuel dealers, and financial 2014’’) for the various managerial and technical telecommunications firms, colleges and transactions processing firms. staff support exemplified above (administrative universities, and hospitals. 6 Card issuers within the FTC’s jurisdiction service managers, computer & information systems 5 Low-risk entities include, for example, public include, for example, state credit unions, general managers, training & development managers, warehouse and storage firms, nursing and retail merchandise stores, colleges and universities, computer systems analysts, network & computer residential care facilities, automotive equipment and telecoms. systems analysts, computer support specialists).

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consumer reports subject to the FTC’s [the midrange between 16 minutes and No. P095406’’ on your comment. Your jurisdiction.8 Commission staff 60 minutes] to develop and comply with comment—including your name and estimates that approximately 10,000 of the policies and procedures that they your state—will be placed on the public these users will receive notice of a will employ when they receive a notice record of this proceeding, including, to discrepancy, in the course of their usual of address discrepancy. FTC staff also the extent practicable, on the public and customary business practices, and estimates that the average recurring Commission Web site, at http://ftc.gov/ thereby have to furnish to CRAs an burden for users of consumer reports to os/publiccomments.shtm. As a matter of address confirmation.9 comply with the Rule will be 23 discretion, the Commission tries to For section 315, as detailed below, minutes [the midrange between one remove individual’s home contact FTC staff estimates that the average minute and 45 minutes]. information from comments before annual burden during the three-year Thus, for these 1,875,275 entities, the placing them on the Commission Web period for which OMB clearance is average annual burden for each of them site. sought will be 876,795 hours with an to perform these collective tasks will be Because your comment will be made ÷ associated labor cost of $15,782,310. 28 minutes [(38 + 23 + 23) 3]; public, you are solely responsible for cumulatively, 875,128 hours. 1. Estimated Hours Burden making sure that your comment does b. Address Verification not include any sensitive personal Prior to enactment of the Address information, like anyone’s Social For the estimated 10,000 users of Discrepancy Rule, users of consumer Security number, date of birth, driver’s reports could compare the address on a consumer reports that will additionally license number, or other state consumer report to the address provided have to furnish to CRAs an address identification number of foreign country by the consumer and discern for confirmation upon notice of a equivalent, passport number, financial themselves any discrepancy. As a result, discrepancy, staff estimates that these account number, or credit or debit card FTC staff believes that many users of entities will require, initially, 30 number. You are also solely responsible consumer reports have developed minutes to develop related policies and for making sure that your comment does methods of reconciling address procedures. But, these 10,000 affected not include any sensitive health discrepancies, and the following entities likely will have automated the information, like medical records or estimates represent the incremental process of furnishing the correct address other individually identifiable health amount of time users of consumer in the first year of a three-year PRA information. In addition, do not include reports may require to develop and clearance cycle. Thus, allowing for 30 any ‘‘[t]rade secret or any commercial or comply with the policies and minutes in the first year, with no annual financial information . . . which is procedures for when they receive a recurring burden in the second and privileged or confidential]’’ as provided notice of address discrepancy. third years of clearance, yields an average annual burden of 10 minutes in Section 6(f) of the FTC Act, 15 U.S.C. a. Customer Verification per entity to furnish a correct address to 46(f), and FTC Rule 4.10(a)(2), 16 CFR Given the varied nature of the entities a CRA, for a total of 1,667 hours. 4.10(a)(2). In particular, don’t include under the FTC’s jurisdiction, it is competitively sensitive information 2. Estimated Cost Burden difficult to determine precisely the such as costs, sales statistics, appropriate burden estimates. FTC staff assumes that the policies inventories, formulas, patterns devices, Nonetheless, FTC staff estimates that it and procedures for compliance with the manufacturing processes, or customer would require an infrequent user of address discrepancy part of the Rule names. consumer reports no more than 16 will be set up by administrative support If you want the Commission to give minutes to develop and comply with the personnel at an hourly rate of $18.10 your comment confidential treatment, policies and procedures that it will Based on the above estimates and you must file it in paper form, with a employ when it receives a notice of assumptions, the total annual labor cost request for confidential treatment, and address discrepancy, while a frequent for the two categories of burden under you have to follow the procedure user might require one hour. Similarly, section 315 is $15,782,310. explained in FTC Rule 4.9(c), 16 CFR 4.9(c).11 Your comment will be kept FTC staff estimates that, during the C. Burden Totals for FCRA Sections 114 confidential only if the FTC General remaining two years of clearance, it may and 315 take an infrequent user no more than Counsel, in his or her sole discretion, one minute to comply with the policies Cumulatively, then, estimated burden grants your request in accordance with and procedures it will employ when it is 2,296,863 hours (1,420,068 hours for the law and the public interest. receives a notice of address discrepancy, section 114 and 876,795 hours for Postal mail addressed to the while a frequent user might require 45 section 315) and $92,465,982 Commission is subject to delay due to ($76,683,672 and $15,782,310) in minutes. Taking into account these heightened security screening. As a associated labor costs. extremes, FTC staff estimates that, result, we encourage you to submit your during the first year, it will take users IV. Request for Comment comments online. To make sure that the Commission considers your online of consumer reports under the FTC’s You can file a comment online or on jurisdiction an average of 38 minutes comment, you must file it at https:// paper. For the FTC to consider your ftcpublic.commentworks.com/ftc/ comment, we must receive it on or 8 RedFlagsPRA, by following the This estimate is derived from an analysis of before [60 days after publication]. Write: Census databases of U.S. businesses based on instructions on the web-based form. NAICS codes for businesses in industries that ‘‘Red Flags Rule, PRA Comment, Project When this Notice appears at http:// typically use consumer reports from CRAs www.regulations.gov/#!home, you also described in the Rule, which total 1,875,275 users 10 This estimate—rounded to the nearest dollar of consumer reports subject to the FTC’s —is based on mean hourly wages for all jurisdiction. management occupations found within the ‘‘Bureau 11 In particular, the written request for 9 Report to Congress Under Sections 318 and 319 of Labor Statistics, Economic News Release,’’ March confidential treatment that accompanies the of the Fair and Accurate Credit Transactions of 25, 2015, Table 1, ‘‘National employment and wage comment must include the factual and legal basis 2003, Federal Trade Commission, 80 (Dec. 2004) data from the Occupational Employment Statistics for the request, and must identify the specific available at http://www.ftc.gov/reports/facta/ survey by occupation, May 2014.’’ http:// portions of the comment to be withheld from the 041209factarpt.pdf. www.bls.gov/news.release/ocwage.t01.htm. public record. See FTC Rule 4.9(c), 16 CFR 4.9(c).

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may file a comment through that Web you prefer to file your comment on for making sure that your comment does site. paper, write ‘‘Dollar Tree, Inc. and not include any sensitive health If you file your comment on paper, Family Dollar Stores, Inc.—Consent information, like medical records or write ‘‘Red Flags Rule PRA, Project No. Agreement; File No. 141–0207’’ on your other individually identifiable health P095406’’ on your comment and on the comment and on the envelope, and mail information. In addition, do not include envelope, and mail or deliver it to the your comment to the following address: any ‘‘[t]rade secret or any commercial or following address: Federal Trade Federal Trade Commission, Office of the financial information which . . . is Commission, Office of the Secretary, Secretary, 600 Pennsylvania Avenue privileged or confidential,’’ as discussed Constitution Center, 400 7th Street SW., NW., Suite CC–5610 (Annex D), in Section 6(f) of the FTC Act, 15 U.S.C. 5th Floor, Suite CC–5610 (Annex J), Washington, DC 20580, or deliver your § 46(f), and FTC Rule 4.10(a)(2), 16 CFR Washington, DC 20024. If possible, comment to the following address: § 4.10(a)(2). In particular, do not include submit your paper comment to the Federal Trade Commission, Office of the competitively sensitive information Commission by courier or overnight Secretary, Constitution Center, 400 7th such as costs, sales statistics, service. Street SW., 5th Floor, Suite 5610 inventories, formulas, patterns, devices, The FTC Act and other laws that the (Annex D), Washington, DC 20024. manufacturing processes, or customer Commission administers permit the FOR FURTHER INFORMATION CONTACT: names. collection of public comments to Sean Pugh, Bureau of Competition, If you want the Commission to give consider and use in this proceeding as (202–326–3201), 600 Pennsylvania your comment confidential treatment, appropriate. The Commission will Avenue NW., Washington, DC 20580. you must file it in paper form, with a consider all timely and responsive request for confidential treatment, and SUPPLEMENTARY INFORMATION: Pursuant public comments that it receives on or you have to follow the procedure to Section 6(f) of the Federal Trade before September 18, 2015. For explained in FTC Rule 4.9(c), 16 CFR Commission Act, 15 U.S.C. 46(f), and information on the Commission’s § 4.9(c).1 Your comment will be kept FTC Rule 2.34, 16 CFR 2.34, notice is privacy policy, including routine uses confidential only if the FTC General hereby given that the above-captioned by the Privacy Act, see http:// Counsel, in his or her sole discretion, consent agreement containing consent www.ftc.gov/ftc/privacy.htm. grants your request in accordance with orders to cease and desist, having been the law and the public interest. David C. Shonka, filed with and accepted, subject to final Postal mail addressed to the Principal Deputy General Counsel. approval, by the Commission, has been Commission is subject to delay due to [FR Doc. 2015–17764 Filed 7–17–15; 8:45 am] placed on the public record for a period heightened security screening. As a BILLING CODE 6750–01–P of thirty (30) days. The following result, we encourage you to submit your Analysis to Aid Public Comment comments online. To make sure that the describes the terms of the consent Commission considers your online FEDERAL TRADE COMMISSION agreement, and the allegations in the comment, you must file it at https:// complaint. An electronic copy of the [File No. 141 0207] ftcpublic.commentworks.com/ftc/ full text of the consent agreement dollartreeconsent by following the Dollar Tree, Inc. and Family Dollar package can be obtained from the FTC instructions on the web-based form. If Stores, Inc.; Analysis of Proposed Home Page (for July 2, 2015), on the this Notice appears at http:// Consent Orders To Aid Public World Wide Web, at http://www.ftc.gov/ www.regulations.gov/#!home, you also Comment os/actions.shtm. may file a comment through that Web You can file a comment online or on site. AGENCY: Federal Trade Commission. paper. For the Commission to consider If you file your comment on paper, ACTION: Proposed consent agreement. your comment, we must receive it on or write ‘‘Dollar Tree, Inc. and Family before August 3, 2015. Write ‘‘Dollar Dollar Stores, Inc.—Consent Agreement; SUMMARY: The consent agreement in this Tree, Inc. and Family Dollar Stores, File No. 141–0207’’ on your comment matter settles alleged violations of Inc.—Consent Agreement; File No. 141– and on the envelope, and mail your federal law prohibiting unfair methods 0207’’ on your comment. Your comment to the following address: of competition. The attached Analysis to comment—including your name and Federal Trade Commission, Office of the Aid Public Comment describes both the your state—will be placed on the public Secretary, 600 Pennsylvania Avenue allegations in the draft complaint and record of this proceeding, including, to NW., Suite CC–5610 (Annex D), the terms of the consent orders— the extent practicable, on the public Washington, DC 20580, or deliver your embodied in the consent agreement— Commission Web site, at http:// comment to the following address: that would settle these allegations. www.ftc.gov/os/publiccomments.shtm. Federal Trade Commission, Office of the DATES: Comments must be received on As a matter of discretion, the Secretary, Constitution Center, 400 7th or before August 3, 2015. Commission tries to remove individuals’ Street SW., 5th Floor, Suite 5610 ADDRESSES: Interested parties may file a home contact information from (Annex D), Washington, DC 20024. If comment at https:// comments before placing them on the possible, submit your paper comment to ftcpublic.commentworks.com/ftc/ Commission Web site. the Commission by courier or overnight dollartreeconsent online or on paper, by Because your comment will be made service. following the instructions in the public, you are solely responsible for Visit the Commission Web site at Request for Comment part of the making sure that your comment does http://www.ftc.gov to read this Notice SUPPLEMENTARY INFORMATION section not include any sensitive personal and the news release describing it. The below. Write ‘‘Dollar Tree, Inc. and information, like anyone’s Social FTC Act and other laws that the Family Dollar Stores, Inc.—Consent Security number, date of birth, driver’s Agreement; File No. 141–0207’’ on your license number or other state 1 In particular, the written request for confidential comment and file your comment online identification number or foreign country treatment that accompanies the comment must include the factual and legal basis for the request, at https://ftcpublic.commentworks.com/ equivalent, passport number, financial and must identify the specific portions of the ftc/dollartreeconsent by following the account number, or credit or debit card comment to be withheld from the public record. See instructions on the web-based form. If number. You are also solely responsible FTC Rule 4.9(c), 16 CFR § 4.9(c).

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Commission administers permit the nationwide.2 The elimination of this general merchandise items at collection of public comments to competition would result in significant discounted prices in stores with small consider and use in this proceeding as competitive harm; specifically the footprints (i.e., approximately 7,000 to appropriate. The Commission will Acquisition will allow the combined 10,000 square feet of selling space), consider all timely and responsive entity to increase prices unilaterally located relatively close to consumers’ public comments that it receives on or above competitive levels. Similarly, homes or places of work.3 Customers before August 3, 2015. For information absent a remedy, there is significant risk often shop at dollar stores as part of a on the Commission’s privacy policy, that the merged firm may decrease the ‘‘fill-in’’ shopping trip. Dollar stores including routine uses permitted by the quality and service aspects of its stores. typically compete most closely with Privacy Act, see http://www.ftc.gov/ftc/ The proposed Consent Order would other dollar stores that provide the same privacy.htm. remedy the alleged violations by kind of convenient shopping trip for requiring divestitures to replace discounted general merchandise. Analysis of Agreement Containing competition that otherwise would be Walmart competes closely with dollar Consent Orders To Aid Public Comment lost in these markets because of the stores and offers a wide assortment of I. Introduction and Background Acquisition. products at deeply-discounted prices. Although Walmart does not provide the II. The Respondents The Federal Trade Commission same kind of convenience as that of (‘‘Commission’’) has accepted for public As of January 31, 2015, Dollar Tree dollar stores given its less-accessible comment, subject to final approval, an operated 5,157 discount general locations, larger store footprints, and Agreement Containing Consent Orders merchandise retail stores across the greater assortment of products, Walmart (‘‘Consent Order’’) from Dollar Tree, Inc. United States under the Dollar Tree and nevertheless competes closely with (‘‘Dollar Tree’’) and Family Dollar Deals banners. Presently, Dollar Tree dollar stores by offering a comparable or Stores, Inc. (‘‘Family Dollar’’), banner stores are located in 48 states better value to consumers in terms of (collectively, the ‘‘Respondents’’). On and the District of Columbia, while pricing. For purposes of this matter, July 27, 2014, Dollar Tree and Family Deals banner stores are currently located ‘‘discount general merchandise retail Dollar entered into an agreement in 18 states and the District of stores’’ refers to dollar stores and the whereby Dollar Tree would acquire Columbia. In the Dollar Tree banner retailer Walmart. Family Dollar for approximately $9.2 stores, Dollar Tree sells a wide selection Although other retail stores (i.e., of everyday basic, seasonal, closeout, billion (the ‘‘Acquisition’’). The purpose supermarkets, pharmacies, mass and promotional merchandise for $1 or of the proposed Consent Order is to merchandisers, and discount specialty less. At its Deals banner stores, Dollar merchandise retail stores) often sell remedy the anticompetitive effects that Tree offers an expanded assortment of discounted merchandise similar to that otherwise would result from Dollar this merchandise at prices generally less offered by dollar stores and Walmart, Tree’s acquisition of Family Dollar. than $10. Dollar Tree and Deals banner these other retailers generally are not as Under the terms of the proposed stores range in size from 8,000 to 12,000 effective at constraining Respondents as Consent Order, Respondents are square feet of selling space and typically are other discount general merchandise required to divest 330 stores in local carry between 6,600 to 7,000 stock retail stores.4 These other retailers do geographic markets (collectively, the keeping units (‘‘SKUs’’). not offer the same value as Walmart or ‘‘relevant markets’’) in 35 states to the As of February 28, 2015, Family the same combination of convenience Commission-approved buyer. The Dollar operated approximately 8,184 and value offered by dollar stores, divestitures must be completed within discount general merchandise retail which tends to make them less effective 150 days from the date of the stores nationwide. Family Dollar sells substitutes for discount general Acquisition. The Commission and an assortment of consumables, home merchandise retail stores. As a result, Respondents have agreed to an Order to products, apparel and accessories, consumers shopping at discount general Maintain Assets to maintain the seasonal items, and electronic merchandise retail stores are unlikely to viability of Respondents’ assets until merchandise at prices generally less significantly increase purchases of they are transferred to the Commission- than $10. Currently, Family Dollar discounted merchandise at other approved buyer. stores are located in 46 states and the retailers in response to a small but The proposed Consent Order has been District of Columbia. Stores typically significant price increase at discount placed on the public record for 30 days have 7,150 square feet of selling space general merchandise retail stores. to solicit comments from interested and carry approximately 6,500 to 7,000 However, in certain geographic markets, persons. Comments received during this SKUs. typically characterized by high period will become part of the public III. Competition in the Relevant population density, where the number record. After 30 days, the Commission Markets and geographic proximity of these other again will review the proposed Consent retailers is substantial relative to the Dollar stores are small-format, deep- Order and any comments received, and discount retailers that sell an assortment 3 decide whether the Consent Order The term ‘‘dollar stores’’ as used here includes of consumables and non-consumables, stores operated by Respondents, Dollar General, 99 should be withdrawn, modified, or including food, home products, apparel Cents Only, and Fred’s Super Dollar. made final. and accessories, and seasonal items, at Independently-owned retailers that sell discounted merchandise at the $1 or multi-price point in The Commission’s Complaint alleges prices typically under $10. Dollar stores substantially smaller stores are not included. that the Acquisition, if consummated, differentiate themselves from other 4 The term ‘‘supermarkets’’ as used here includes would violate Section 7 of the Clayton retailers on the basis of both traditional supermarkets such as Kroger and Publix, Act, as amended, 15 U.S.C. § 18, and convenience and value by offering a as well as supermarkets included within hypermarkets such as SuperTarget or Kroger’s Fred Section 5 of the Federal Trade broad assortment but limited variety of Meyer banner. The term ‘‘pharmacies’’ includes Commission Act, as amended, 15 U.S.C. national retail drug stores such as CVS, Rite Aid, § 45, by removing an actual, direct, and 2 The list of cities in which stores will be divested and Walgreens. The term ‘‘mass merchandisers’’ substantial competitor in localized is attached as Appendix A. The list of stores to be includes retailers such as Target and K-Mart. The divested is attached to the Decision and Order as term ‘‘discount specialty merchandise retail stores’’ geographic markets in 222 cities Schedule A. includes retailers such as Big Lots and Aldi.

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competing discount general product offerings, and location in the Sycamore is not an acceptable buyer, merchandise retail stores, the collective relevant geographic markets. With Respondents must immediately rescind presence of these other retailers acts as regard to pricing, product assortment, the divestitures and divest the assets to a more significant price constraint on and a host of other competitive issues, a different buyer that receives the the discount general merchandise retail Respondents typically focus most Commission’s prior approval. stores operating in the area.5 directly on the actions and responses of The proposed Consent Order contains Thus, the relevant line of commerce each other and other dollar stores, while additional provisions to ensure the in which to analyze the Acquisition is also paying close attention to Walmart. adequacy of the proposed relief. For no narrower than discount general In many of the relevant geographic example, Respondents have agreed to an merchandise retail stores. In certain markets, Dollar Tree and Family Dollar Order to Maintain Assets that will be geographic markets, the relevant line of operate the only dollar stores in the area issued at the time the proposed Consent commerce may be as broad as the sale or the vast majority of conveniently- Order is accepted for public comment. of discounted general merchandise in located discount general merchandise The Order to Maintain Assets requires retail stores (i.e., discount general retail stores. Absent relief, the Family Dollar to operate and maintain merchandise retail stores as well as Acquisition would increase the each divestiture store in the normal supermarkets, pharmacies, mass incentive and ability of Dollar Tree to course of business through the date the merchandisers, and discount specialty raise prices unilaterally post- store is ultimately divested to Sycamore. merchandise retail stores). Whether the Acquisition in the relevant geographic Because the divestiture schedule runs relevant line of commerce is discount markets. The Acquisition would also for an extended period of time, the general merchandise retail stores or decrease incentives to compete on non- proposed Consent Order appoints Gary discounted general merchandise in price factors, including product Smith as a Monitor to oversee retail stores depends on the specifics of selection, quality, and service. Respondents’ compliance with the the geographic market at issue, such as Entry into the relevant geographic requirements of the proposed Consent population density and the density and markets that is timely and sufficient to Order and Order to Maintain Assets. Mr. proximity of the Respondents’ stores prevent or counteract the expected Smith has the experience and skills to and competing retailers. anticompetitive effects of the be an effective Monitor, no identifiable The relevant geographic market varies Acquisition is unlikely. Entry barriers conflicts, and sufficient time to dedicate depending on the unique characteristics include the time, costs, and feasibility to this matter through its conclusion. of each market, including the local road associated with identifying and * * * * * network, physical boundaries, and potentially constructing an appropriate The sole purpose of this Analysis is population density. A strong motivation and available location for a discount to facilitate public comment on the of consumers shopping at discount general merchandise retail store, the proposed Consent Order. This Analysis general merchandise retail stores is resources required to support one or does not constitute an official convenience. As with grocery shopping, more new stores over a prolonged ramp- interpretation of the proposed Consent the vast majority of consumers who up period, and the sufficient scale to Order, nor does it modify its terms in shop for discounted general compete effectively. An entrant’s ability any way. merchandise do so at stores located very to secure a viable competitive location close to where they live or work. The may be hindered by restrictive-use Appendix A draw area of a dollar store, which varies commercial lease covenants, which can limit the products sold, or even the type Number depending on whether it is located in an City of stores urban, suburban, or rural area, may of retailer that can be located, at a divested range from a couple of city blocks to particular location. several miles. Other market participants, IV. The Proposed Consent Order Alabama ...... Montgomery .... 1 such as supermarkets and retail Arizona ...... Lake Havasu ... 1 pharmacies, may have similar, although The proposed remedy, which requires Arizona ...... Tucson ...... 1 California ...... Farmersville ..... 1 somewhat broader draw areas. the divestiture of 330 Family Dollar stores in the relevant markets to California ...... Fresno ...... 1 Walmart’s stores, particularly Walmart California ...... Inglewood ...... 1 Supercenters, tend to have a Sycamore Partners (‘‘Sycamore’’), will restore fully the competition that California ...... Lemoore ...... 1 considerably broader draw area. In California ...... San Bernardino 1 otherwise would be eliminated in these highly urban areas, the geographic Colorado ...... Aurora ...... 1 markets as a result of the Acquisition. markets are generally no broader than a Colorado ...... Colorado 3 Sycamore is a private equity firm half-mile radius around a given store. In Springs. specializing in consumer and retail Colorado ...... Denver ...... 1 highly rural areas, the geographic investments. The proposed buyer Colorado ...... Federal Heights 1 market is generally no narrower than a appears to be a highly suitable Colorado ...... Lakewood ...... 1 three-mile radius around a given store. purchaser and is well positioned to Connecticut ..... Bloomfield ...... 1 In areas neither highly urban nor highly enter the relevant geographic markets Connecticut ..... Bridgeport ...... 1 rural, the geographic market is generally Connecticut ..... Groton ...... 1 and prevent the likely competitive harm within a half-mile to three-mile radius Connecticut ..... Meriden ...... 1 that otherwise would result from the around a given store. Connecticut ..... New Haven ..... 1 Respondents are close competitors in Acquisition. Sycamore’s proposed Connecticut ..... West Hartford .. 1 terms of format, customer service, executive team has extensive experience Delaware ...... Wilmington ...... 1 operating discount general merchandise Florida ...... Dania ...... 1 Florida ...... Deltona ...... 2 5 Online retailers are not participants in the retail stores. The proposed Consent Order requires Florida ...... Hollywood ...... 1 relevant product market. The primary appeal of Florida ...... Homestead ...... 1 dollar stores is the combination of value and Respondents to divest 330 stores to Florida ...... Jacksonville ..... 2 convenience they offer consumers. Given the time Sycamore within 150 days from the date required to process and ship items ordered online, Florida ...... Kissimmee ...... 3 Internet retailers are less convenient shopping of the Acquisition. If, at any time before Florida ...... Miami ...... 3 options for consumers looking to make an the proposed Consent Order is made Florida ...... Miami Gardens 1 immediate purchase on a fill-in trip. final, the Commission determines that Florida ...... Plantation ...... 1

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Number Number Number City of stores City of stores City of stores divested divested divested

Florida ...... Tampa ...... 3 Michigan ...... Inkster ...... 1 Ohio ...... East Cleveland 1 Georgia ...... Atlanta ...... 7 Michigan ...... Lansing ...... 1 Ohio ...... Milford ...... 1 Georgia ...... Columbus ...... 1 Michigan ...... Livonia ...... 1 Ohio ...... St. Bernard ...... 1 Georgia ...... Decatur ...... 3 Michigan ...... Mount Morris ... 1 Ohio ...... Toledo ...... 2 Georgia ...... Lake City ...... 1 Michigan ...... Oak Park ...... 1 Ohio ...... Whitehall ...... 1 Georgia ...... Norcross ...... 1 Michigan ...... Portage ...... 1 Oklahoma ...... Oklahoma City 2 Georgia ...... Stone Mountain 1 Michigan ...... Saginaw ...... 1 Pennsylvania ... Allentown ...... 1 Idaho ...... Emmett ...... 1 Michigan ...... Taylor ...... 1 Pennsylvania ... East Liberty ..... 1 Illinois ...... Aurora ...... 1 Michigan ...... Westland ...... 1 Pennsylvania ... Edwardsville .... 1 Illinois ...... Berwyn ...... 1 Michigan ...... Wyoming ...... 1 Pennsylvania ... Harrisburg ...... 2 Illinois ...... Chicago ...... 13 Minnesota ...... Minneapolis ..... 3 Pennsylvania ... Lansdowne ...... 1 Illinois ...... Elgin ...... 1 Minnesota ...... Robbinsdale .... 1 Pennsylvania ... Levittown ...... 1 Illinois ...... Harvey ...... 1 Minnesota ...... St. Paul ...... 3 Pennsylvania ... Mckeesport ...... 1 Indiana ...... Fort Wayne ..... 1 Mississippi ...... Jackson ...... 1 Pennsylvania ... Middletown ...... 1 Indiana ...... Gary ...... 2 Missouri ...... Jennings ...... 1 Pennsylvania ... Morrisville ...... 1 Indiana ...... Indianapolis ..... 2 Missouri ...... St. Louis ...... 6 Pennsylvania ... Philadelphia ..... 5 Kentucky ...... Covington ...... 1 Nebraska ...... Omaha ...... 1 Pennsylvania ... Pittsburgh ...... 2 Kentucky ...... Louisville ...... 2 New Jersey ..... Belmar ...... 1 Pennsylvania ... Swissvale ...... 1 Louisiana ...... Baton Rouge ... 1 New Jersey ..... Brigantine ...... 1 Pennsylvania ... Upper Darby .... 1 Louisiana ...... Lafayette ...... 1 New Jersey ..... East Orange .... 1 Pennsylvania ... Yeadon ...... 1 Louisiana ...... New Orleans ... 1 New Jersey ..... Elizabeth ...... 2 Rhode Island ... Bristol ...... 1 Maine ...... Caribou ...... 1 New Jersey ..... Ewing ...... 1 Rhode Island ... Central Falls .... 1 Maine ...... Gray ...... 1 New Jersey ..... Glassboro ...... 1 Rhode Island ... Pawtucket ...... 2 Maine ...... Lewiston ...... 1 New Jersey ..... Hamilton Town- 1 Rhode Island ... Providence ...... 2 Maine ...... Livermore Falls 1 ship. Rhode Island ... Rumford ...... 1 Maine ...... Old Town ...... 1 New Jersey ..... Irvington ...... 1 Tennessee ...... Memphis ...... 3 Maine ...... South Portland 1 New Jersey ..... Mount Holly ..... 1 Tennessee ...... Nashville ...... 1 Maine ...... Waterville ...... 1 New Jersey ..... Newark ...... 2 Texas ...... Arlington ...... 1 Maryland ...... Baltimore ...... 4 New Jersey ..... Paterson ...... 1 Texas ...... Balch Springs .. 1 Maryland ...... Capitol Heights 1 New Jersey ..... Pleasantville .... 1 Texas ...... Beaumont ...... 1 Maryland ...... Lanham ...... 1 New Jersey ..... Vineland ...... 1 Texas ...... Brownsville ...... 1 Maryland ...... Mount Rainier .. 1 New Mexico .... Albuquerque .... 3 Texas ...... Corpus Christi 1 Maryland ...... Oxon Hill ...... 1 New Mexico .... Las Cruces ...... 1 Texas ...... Dallas ...... 1 Maryland ...... Salisbury ...... 1 New York ...... Astoria ...... 1 Texas ...... Eagle Pass ...... 1 Maryland ...... Silver Spring .... 1 New York ...... Bronx ...... 8 Texas ...... El Paso ...... 3 Maryland ...... Temple Hills .... 1 New York ...... Brooklyn ...... 7 Texas ...... Fort Worth ...... 2 Massachusetts Boston ...... 1 New York ...... College Point ... 1 Texas ...... Houston ...... 5 Massachusetts Brockton ...... 1 New York ...... East Aurora ..... 1 Texas ...... Lubbock ...... 1 Massachusetts Cambridge ...... 1 New York ...... Far Rockaway 1 Texas ...... Odessa ...... 1 Massachusetts Chelsea ...... 1 New York ...... Glendale ...... 1 Texas ...... Pasadena ...... 1 Massachusetts Dorchester ...... 1 New York ...... Grand Island ... 1 Texas ...... San Antonio .... 2 Massachusetts Framingham .... 1 New York ...... Greece ...... 1 Utah ...... Midvale ...... 1 Massachusetts Gloucester ...... 1 New York ...... Jamaica ...... 2 Utah ...... Ogden ...... 1 Massachusetts Greenfield ...... 1 New York ...... Johnstown ...... 1 Utah ...... Provo ...... 1 Massachusetts Holyoke ...... 1 New York ...... Lindenhurst ..... 1 Utah ...... Salt Lake City .. 1 Massachusetts Lowell ...... 1 New York ...... Mattydale ...... 1 Utah ...... St. George ...... 1 Massachusetts Medford ...... 1 New York ...... Mount Vernon 1 Utah ...... West Valley 1 Massachusetts New Bedford... 1 New York ...... Patchogue ...... 1 City. Massachusetts North Adams... 1 New York ...... Poughkeepsie 1 Vermont ...... Morrisville ...... 1 Massachusetts Randolph ...... 1 New York ...... Queens ...... 2 Vermont ...... Newport ...... 1 Massachusetts Revere ...... 1 New York ...... Queens Village 1 Virginia ...... Alexandria ...... 1 Massachusetts South Yar- 1 New York ...... Ridgewood ...... 1 Virginia ...... Chesapeake .... 1 mouth. New York ...... Rochester ...... 3 Virginia ...... Hampton ...... 1 Massachusetts Springfield ...... 2 New York ...... Rocky Point ..... 1 Virginia ...... Lynchburg ...... 1 Massachusetts Ware ...... 1 New York ...... Saranac Lake .. 1 Virginia ...... Norfolk ...... 3 Massachusetts West Spring- 1 New York ...... Selden ...... 1 Virginia ...... Portsmouth ...... 1 field. New York ...... Shirley ...... 1 Virginia ...... Richmond ...... 1 Massachusetts Worcester ...... 1 New York ...... Springfield Gar- 1 West Virginia ... Huntington ...... 1 Michigan ...... Benton Harbor 1 dens. Wisconsin ...... Appleton ...... 1 Michigan ...... Burton ...... 1 New York ...... Staten Island ... 2 Wisconsin ...... Eau Claire ...... 1 Michigan ...... Detroit ...... 5 New York ...... Syracuse ...... 2 Wisconsin ...... Milwaukee ...... 3 Michigan ...... Eastpointe ...... 1 New York ...... Utica ...... 1 Wisconsin ...... St. Francis ...... 1 Michigan ...... Ferndale ...... 1 North Carolina Charlotte ...... 2 Michigan ...... Grand Rapids .. 2 Ohio ...... Akron ...... 1 Michigan ...... Hamtramck ...... 1 Ohio ...... Canton ...... 1 By direction of the Commission, Michigan ...... Hazel Park ...... 1 Ohio ...... Cincinnati ...... 5 Commissioner Wright dissenting. Michigan ...... Highland Park 1 Ohio ...... Cleveland ...... 4 Donald S. Clark, Michigan ...... Holland ...... 1 Ohio ...... Columbus ...... 3 Secretary.

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Statement of the Federal Trade the local markets where it may likely to other retail stores, ordinary course of Commission harm competition, the Commission business documents and data supplied The Federal Trade Commission has considered multiple sources of by Dollar Tree and Family Dollar, accepted a proposed settlement to quantitative and qualitative evidence. information from other market resolve the likely anticompetitive effects One component of the investigation participants, and analyses conducted by of Dollar Tree, Inc.’s proposed $9.2 involved a Gross Upward Pricing various state attorneys general who were billion acquisition of Family Dollar Pressure Index (‘‘GUPPI’’) analysis. As also investigating the transaction. After Stores, Inc.1 We have reason to believe described in the 2010 Horizontal Merger considering all of this evidence, the that, absent a remedy, the proposed Guidelines, this mode of analysis can Commission identified specific local acquisition is likely to substantially serve as a useful indicator of whether a markets where the acquisition would be lessen competition between Dollar Tree merger involving differentiated products likely to harm competition and arrived and Family Dollar in numerous local is likely to result in unilateral at the list of 330 stores slated for 2 markets. Under the terms of the anticompetitive effects. Such effects divestiture. proposed consent order, Dollar Tree and can arise ‘‘when the merger gives the In his statement, Commissioner Family Dollar are required to divest 330 merged entity an incentive to raise the Wright criticizes the way that the stores to a Commission-approved buyer. price of a product previously sold by Commission used the GUPPI analysis in As we explain below, we believe the one merging firm’’ because the merged this case and argues that GUPPIs below proposed divestitures preserve entity stands to profit from any sales a certain threshold should be treated as competition in the markets adversely that are then diverted to products that a ‘‘safe harbor.’’ 5 We respectfully affected by the acquisition and are would have been ‘‘previously sold by disagree. 3 therefore in the public interest. the other merging firm.’’ Using the As an initial matter, Commissioner Dollar Tree operates over 5,000 value of diverted sales as an indicator of Wright mischaracterizes the way that discount general merchandise retail the upward pricing pressure resulting the GUPPI analysis was used in this stores across the United States under from the merger, a GUPPI is defined as case. Contrary to his suggestion, GUPPIs two banners which follow somewhat the value of diverted sales that would be were not used as a rigid presumption of different business models. In its Dollar gained by the second firm measured in harm. As explained above, they were Tree banner stores, Dollar Tree sells a proportion to the revenues that would used only as an initial screen to identify wide selection of everyday basic, be lost by the first firm. If the ‘‘value of those markets where further seasonal, closeout, and promotional diverted sales is proportionately small, investigation was warranted. The merchandise—all for $1 or less. At its significant unilateral price effects are Commission then proceeded to consider Deals banner stores, Dollar Tree sells an unlikely.’’ 4 the results of the GUPPI analysis in expanded assortment of this The Commission’s investigation conjunction with numerous other merchandise at prices that may go above involved thousands of Dollar Tree and sources of information.6 Based on this the $1 price point but are generally less Family Dollar stores with overlapping complete body of evidence, we have than $10. Family Dollar operates over geographic markets. A GUPPI analysis reason to believe that, without the 8,000 discount general merchandise served as a useful initial screen to flag proposed divestitures, the acquisition retail stores. Family Dollar sells an those markets where the transaction would substantially lessen competition assortment of consumables, home might likely harm competition and in each of the relevant local markets. products, apparel and accessories, those where it might pose little or no Our market-by-market review showed seasonal items, and electronic risk to competition. As a general matter, that the model of competition merchandise at prices generally less Dollar Tree and Family Dollar stores underlying the GUPPI analysis was than $10, including items priced at or with relatively low GUPPIs suggested largely consistent with other available under $1. that the transaction was unlikely to evidence regarding the closeness of Dollar Tree and Family Dollar harm competition, unless the competition between the parties’ stores compete head-to-head in numerous investigation uncovered specific reasons in each local market. For example, local markets across the United States. why the GUPPIs may have understated stores with high GUPPIs were generally They are close competitors in terms of the potential for anticompetitive effects. found in markets in which there were format, pricing, customer service, Conversely, Dollar Tree and Family few or no other conveniently located product offerings, and location. When Dollar stores with relatively high discount general merchandise retail making competitive decisions regarding GUPPIs suggested that the transaction stores. The GUPPI analysis did have pricing, product assortment, and other was likely to harm competition, subject some limitations, however. For salient aspects of their businesses, to evidence or analysis indicating that example, there were Family Dollar Dollar Tree and Family Dollar focus the GUPPIs may have overstated the stores with relatively low GUPPIs in most directly on the actions and potential for anticompetitive effects. markets that were nevertheless price- responses of each other and other While the GUPPI analysis was an zoned to Dollar Tree stores, which ‘‘dollar store’’ chains, while also paying important screen for the Commission’s meant that if Dollar Tree stores were close attention to Walmart. In many inquiry, it was only a starting point. The Commission considered several other local markets, Dollar Tree and Family 5 Statement of Commissioner Joshua D. Wright Dollar operate stores in close proximity sources of evidence in assessing the Dissenting in Part and Concurring in Part, Dollar transaction’s likely competitive effects, Tree, Inc. and Family Dollar Stores, Inc., File No. to each other, often representing the including additional detail regarding the 141–0207. only or the majority of conveniently 6 geographic proximity of the merging As Joseph Farrell and Carl Shapiro have noted, located discount general merchandise parties’ stores relative to each other and ‘‘[r]eal-world mergers are complex, and our retail stores in a neighborhood. proposed test, like the concentration-based test, is To evaluate the likely competitive consciously oversimplified. . . . In the end, the 2 U.S. Dept. of Justice and Fed. Trade Comm’n, evaluation of any merger that is thoroughly effects of this transaction and identify Horizontal Merger Guidelines § 6.1 (2010), available investigated or litigated may come down to the at https://www.ftc.gov/sites/default/files/ fullest feasible analysis of effects.’’ Joseph Farrell & 1 This statement reflects the views of Chairwoman attachments/merger-review/100819hmg.pdf. Carl Shapiro, Antitrust Evaluation of Horizontal Ramirez and Commissioners Brill, Ohlhausen, and 3 Id. Mergers: An Economic Alternative to Market McSweeny. 4 Id. Definition, 10 B.E. J. Theoretical Econ. 1, 26 (2010).

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removed as competition, then the prices is a basis for the recognition of a GUPPI Statement of Commissioner Joshua D. of certain items at those Family Dollar safe harbor. Wright Dissenting in Part and stores would likely go up. The GUPPI Accordingly, in any case where a Concurring in Part analysis also was not sufficiently GUPPI analysis is used, the Commission The Commission has voted to issue a sensitive to differentiate between Dollar will consider the particular factual Complaint and a Decision & Order Tree and Family Dollar stores that were circumstances and evaluate other against Dollar Tree, Inc. (‘‘Dollar Tree’’) in the same shopping plaza from those and Family Dollar Stores, Inc. (‘‘Family that were almost a mile away from each sources of quantitative and qualitative 12 Dollar’’) to remedy the allegedly other. For these situations, we evidence. As with other quantitative anticompetitive effects of the proposed appropriately relied on other evidence evidence such as market shares and acquisition by Dollar Tree of Family to reach a judgment about the closeness HHIs, we believe that GUPPIs should be of competition.7 considered in the context of all other Dollar. I dissent in part from and concur More broadly, Commissioner Wright’s reasonably available evidence. The 2010 in part with the Commission’s decision. view that the Commission should Horizontal Merger Guidelines do not I dissent in part because in 27 markets identify and treat GUPPIs below a instruct otherwise.13 For all of these I disagree with the Commission’s certain threshold as a ‘‘safe harbor’’ reasons, we believe it is appropriate to conclusion that there is reason to ignores the reality that merger analysis use GUPPIs flexibly and as merely one believe the proposed transaction violates the Clayton Act. is inherently fact-specific. The manner tool of analysis in the Commission’s The record evidence includes a in which GUPPI analysis is used will assessment of unilateral anticompetitive quantitative measure of the value of vary depending on the factual effects. circumstances, the available data, and diverted sales as well as various forms the other evidence gathered during an By direction of the Commission, of qualitative evidence. The value of investigation. Moreover, whether the Commissioner Wright not participating. diverted sales is typically measured as value of diverted sales is considered the product of the diversion ratio ‘‘proportionately small’’ compared to consequence, the per se rule is appropriate only between the merging parties’ products— lost revenues will vary from industry to after courts have had considerable experience with the diversion ratio between two the type of restraint at issue, . . . and only if courts industry and firm to firm.8 For example, products is the percentage of unit sales can predict with confidence that it would be lost by one product when its price rises, intense competition between merging invalidated in all or almost all instances under the firms may cause margins to be very low, rule of reason, . . .’’); Cal. Dental Ass’n v. FTC, 526 that are captured by the second which could produce a low GUPPI even U.S. 756, 781 (1999) (‘‘The object is to see whether product—and the profit margin of the in the presence of very high diversion the experience of the market has been so clear, or second product. When the value of ratios. Such conditions could produce a necessarily will be, that a confident conclusion diverted sales is measured in proportion false negative implying that the merger about the principal tendency of a restriction will to ‘‘the lost revenues attributable to the follow from a quick (or at least quicker) look, in reduction in unit sales resulting from is not likely to harm competition when place of a more sedulous one.’’); ProMedica Health 9 1 in fact it is. Sys., Inc. v. FTC, 749 F.3d 559, 570, 571 (6th Cir. the price increase,’’ it is the ‘‘gross Indeed, we agree with Commissioner 2014) (noting that ‘‘the strong correlation between upward pricing pressure index,’’ or Wright that ‘‘a GUPPI-based market share and price, and the degree to which ‘‘GUPPI.’’ The GUPPI is an economic presumption of competitive harm is this merger would further concentrate markets that tool used to score or rank the incentives inappropriate at this stage of economic are already highly concentrated—converge in a for potential unilateral price effects. In learning.’’ 10 We think that a GUPPI- manner that fully supports the Commission’s the markets where I depart from the application of a presumption of illegality’’ but also based safe harbor is equally noting that ‘‘the Commission did not merely rest Commission’s decision the GUPPI is inappropriate. In antitrust law, bright- upon the presumption, but instead discussed a below 5 percent, indicating insignificant line rules and presumptions rest on wide range of evidence that buttresses it’’). upward pricing pressure even before accumulated experience and economic 12 See Carl Shapiro, The 2010 Horizontal Merger efficiencies or entry are taken into learning that the transaction or conduct Guidelines: From Hedgehog to Fox in Forty Years, account, and weak incentives for in question is likely or unlikely to harm 77 Antitrust L.J. 701, 729 (2010) (‘‘The value of unilateral price increases. In my view, competition.11 We do not believe there diverted sales is an excellent simple measure for diagnosing or scoring unilateral price effects, but it the available quantitative and cannot capture the full richness of competition in qualitative evidence are insufficient to 7 Commissioner Wright cites the Albertson’s/ real-world industries. Indeed, as stressed above, all support a reason to believe the proposed Safeway transaction as another recent case in which of the quantitative methods discussed here must be a GUPPI analysis was used. See Wright Statement transaction will harm competition in used in conjunction with the broader set of at 2 n.6. To be precise, the Commission analyzed these markets. I write separately to that transaction using diversion ratios, not GUPPI qualitative evidence that the Agencies assemble explain more fully the basis for my during a merger investigation.’’); Farrell & Shapiro, scores, but in any event, Commissioner Wright dissent in these markets. himself voted to accept the consent order in that Upward Pricing Pressure, supra note 8, at 6 case. (‘‘Whatever measure is used for screening purposes, I also write to address an important 8 Marginal cost efficiencies, as well as pass- it is important that the full analysis give proper merger policy issue implicated by through rates, also will vary from industry to weight to all the available evidence.’’). today’s decision—that is, whether the industry and from firm to firm. The pass-through Notwithstanding Commissioner Wright’s suggestion FTC should adopt a safe harbor in rate will determine the magnitude of the post- to the contrary, we do not believe that the merger unilateral price effects. Commission’s use of GUPPIs as a tool for assessing unilateral effects merger investigations 9 Joseph Farrell & Carl Shapiro, Upward Pricing unilateral effects differs materially from their use by by defining a GUPPI threshold below Pressure and Critical Loss Analysis: Response, CPI the Department of Justice. which it is presumed competitive harm Antitrust J. 1, 6–7 & n.15 (Feb. 2010); Farrell & 13 Recognizing in the 2010 Horizontal Merger is unlikely. The Merger Guidelines Shapiro, Antitrust Evaluation of Horizontal Guidelines that when the ‘‘value of diverted sales Mergers, supra note 6, at 13–14. clearly contemplate such a safe harbor. is proportionately small, significant unilateral price 10 Wright Statement, supra note 5, at 8 & nn.23 The Merger Guidelines explain that ‘‘[i]f & 24 (citing commentators’ concerns and criticisms effects are unlikely’’ does not necessarily mean that the value of diverted sales is ‘‘proportionately small’’ should be reduced to some regarding the use of GUPPI analysis generally). proportionately small, significant Such concerns and criticisms, if valid, would apply numerical value that applies in all cases. See equally to the wisdom of using GUPPIs to recognize Merger Guidelines, supra note 2, § 1 (‘‘These a safe harbor. Guidelines should be read with the awareness that 1 U.S. Dep’t of Justice & Fed. Trade Comm’n, 11 See, e.g., Leegin Creative Leather Prods., Inc. v. merger analysis does not consist of uniform Horizontal Merger Guidelines § 6.1 n.11 (2010) PSKS, Inc., 551 U.S. 877, 886–87 (2007) (‘‘As a application of a single methodology.’’). [hereinafter Merger Guidelines].

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unilateral price effects are unlikely.’’ 2 announced in the Commission’s attempts a rough measure of upward In other words, the Merger Guidelines statement today.7 pricing pressure without a full blown recognize that if the GUPPI is small, This is unfortunate. The legal, analysis—a symmetrical approach significant unilateral price effects are economic, and policy case for the would include a standard efficiencies unlikely. GUPPI-based safe harbor contemplated deduction which would be applied to Without more, one might reasonably by the Merger Guidelines is strong.8 account for the downward pricing conclude it is unclear whether the There are a number of reasons why such pressure from the marginal-cost Merger Guidelines merely offer a truism a safe harbor might be desirable as a efficiencies that can typically be about the relationship between the matter of antitrust policy if sufficiently expected to result from transactions.9 GUPPI and likely unilateral price effects supported by economic theory and This approach would permit the or invite the agencies to take on the task evidence. Efficient resource allocation— identification of a gross-upward-pricing- of identifying a safe harbor of general expending agency resources on the pressure threshold that triggers applicability across cases. But there is transactions most likely to raise serious additional scrutiny.10 more. A principal drafter of the Merger competitive concerns and quickly Yet a third reason a safe harbor might Guidelines has explained the Merger dispensing with those that do not—is be desirable is to compensate the well- Guidelines’ reference to a one such goal. known feature of GUPPI-based scoring ‘‘proportionately small’’ value of A second reason a safe harbor for methods to predict harm for any diverted sales was intended to establish proportionately small diversion might positive diversion ratio—that is, even a GUPPI safe harbor. The Department of be desirable antitrust policy is to for distant substitutes—by Justice’s Antitrust Division (‘‘Division’’), compensate for the sources of distinguishing de minimis GUPPI levels consistent with this interpretation of the downward pricing pressure not from those that warrant additional Merger Guidelines, publicly announced measured by the GUPPI but expected scrutiny.11 The Merger Guidelines precisely such a safe harbor when the with most transactions, including contemplate a ‘‘safe harbor’’ because it GUPPI is less than 5 percent.3 Further, efficiencies, entry, or repositioning. ‘‘reflects that a small amount of upward there is significant intellectual support Some have argued that—as a GUPPI pricing pressure is unlikely . . . to for a GUPPI-based safe harbor among correspond to any actual post-merger economists 4—once again including the diversion or GUPPI-based analysis was a step price increase.’’ 12 Carl Shapiro principal drafters of the Merger forward relative to relying exclusively upon explained shortly after adoption of the structural analysis. The fact that there were stores 5 Guidelines. The Commission, however, identified for divestiture with implied GUPPIs less Merger Guidelines, on behalf of the has rejected the safe harbor approach than 5 percent was unique. It is now a trend Division, that ‘‘Current Division practice both in practice—indeed, the reinforced by a Commission decision to reject a is to treat the value of diverted sales as GUPPI-based safe harbor—a decision I do not Commission has recently entered into believe is in the public interest. proportionately small if it is no more 13 another consent involving divestitures Regarding Cerberus, it is worth pointing out than 5% of the lost revenues.’’ in markets with GUPPI scores below 5 further that even a careful reader of the public Against these benefits of adopting a percent 6—and as a matter of the policy documents in that case would come away with the GUPPI-based safe harbor, the impression that the Commission’s analysis was Commission must weigh the cost of 2 largely structural, and concluded a number of six- Id. § 6.1 (emphasis added); see Steven C. Salop, to-five mergers were presumptively reducing its own flexibility and Serge X. Moresi & John Woodbury, CRA anticompetitive. See Analysis of Agreement prosecutorial discretion. This begs the Competition Memo, Scoring Unilateral Effects with Containing Consent Order to Aid Public Comment the GUPPI: The Approach of the New Horizontal question: How likely are mergers within Exhibit A, id. An ancillary benefit of the the proposed safe harbor to be Merger Guidelines 2 (Aug. 31, 2010), available at transparency reluctantly generated by today’s http://crai.com/sites/default/files/publications/ anticompetitive? The benefits of this _ Commission statement is that the antitrust Commentary-on-the-GUPPI 0.pdf. community is now on notice that more flexibility are proportional to the 3 Carl Shapiro, Deputy Ass’t Att’y Gen. for Econ., sophisticated economic tools were used in that probability that the Commission’s Antitrust Div., U.S. Dep’t of Justice, Update from matter, how they were used, and that the potential the Antitrust Division, Remarks as Prepared for the structural policy change signaled by those public economic analysis leads them to ABA Antitrust Law Fall Forum 24 (Nov. 18 2010). documents does not appear to describe accurately conclude that mergers with a GUPPI of 4 See, e.g., Salop, Moresi & Woodbury, supra note the Commission’s complete analysis in that case. less than 5 percent are anticompetitive. 2, at 2 (explaining that ‘‘a GUPPI of less than 5% 7 Statement of the Federal Trade Commission at I am not aware of any transactions since would be reasonably treated as evidence that ‘the 3, Dollar Tree, Inc., FTC File No. 141–0207 (July 13, value of diverted sales is proportionately small’ and 2015) [hereinafter Majority Statement] (‘‘[A] GUPPI- 9 hence that the proposed merger is unlikely to raise based safe harbor is . . . inappropriate.’’). Farrell & Shapiro, supra note 5, at 10–12. 10 unilateral effects concerns’’). 8 A second question is whether a presumption of See id. at 12. 5 See Joseph Farrell & Carl Shapiro, Antitrust competitive harm should follow, as a matter of 11 James A. Keyte & Kenneth B. Schwartz, ‘‘Tally- Evaluation of Horizontal Mergers: An Economic economic theory and empirical evidence, from a Ho!’’: UPP and the 2010 Horizontal Merger Alternative to Market Definition, 10 B.E. J. demonstration of a GUPPI above a certain threshold Guidelines, 7 Antitrust L.J. 587, 628 (2010) (‘‘an Theoretical Econ. 1 (2010). value. There appears to be a consensus that the uncalibrated tool cannot have predictive value as a 6 See Cerberus Institutional Partners V, L.P., FTC answer to this question, at this point, is no. I agree. screen if it always indicates postmerger price File No. 141–0108 (July 2, 2015). There, though one See, e.g., Thomas A. Lambert, Respecting the Limits pressure’’). could not possibly infer this from the public-facing of Antitrust: The Roberts Court Versus the 12 Shapiro, supra note 3, at 24. Shapiro further documents in the case, the Commission applied a Enforcement Agencies 13 (Heritage Foundation cautioned that, although a GUPPI analysis ‘‘can be diversion ratio threshold to identify stores for Legal Memorandum No. 144, Jan. 28, 2015) (the highly informative, the Agencies understand full divestiture. To be accurate, a GUPPI threshold GUPPI ‘‘has not been empirically verified as a well that measuring upward pricing pressure . . . could be implied from the Commission’s analysis means of identifying anticompetitive mergers’’); typically is not the end of the story .... and, as algebraically mindful readers will note, Steven C. Salop, The Evolution and Vitality of Repositioning, entry, innovation, and efficiencies setting a diversion ratio threshold given profit Merger Presumptions: A Decision-Theoretic must also be considered.’’ Id. at 26. margin data and a predicted price increase is not Approach 40–41 (Georgetown Law Faculty 13 Id. at 24. Others have interpreted this speech analytically distinguishable from the analysis in Publications and Other Works, Working Paper No. as clearly announcing Division policy. See Salop, this matter. The Commission rightly points out that 1304, 2014), available at http:// supra note 8, at 43 & n.105 (‘‘In a speech while he I voted in favor of the consent in Cerberus. As to scholarship.law.georgetown.edu/facpub/1304/ was Deputy AAG, Carl Shapiro also specified a whether I am merely being inconsistent in my (‘‘The 2010 Merger Guidelines do not adopt an GUPPI safe harbor of 5%. As a speech by the views on the role of GUPPIs in merger analysis or, anticompetitive enforcement presumption based on Deputy AAG, this statement appeared to reflect DOJ alternatively, there is some other more reasonable high values of the GUPPI score. This was a practical policy.’’ (citing Shapiro, supra note 3)). Other explanation for my votes, I can provide the policy decision at this time because the use of the economists agree that a GUPPI safe harbor should explanation and let readers decide. In Cerberus, I GUPPI was new to much of the defense bar and the apply. E.g., Farrell & Shapiro, supra note 5, at 10; voted for the consent on the basis that the use of courts.’’). Salop, Moresi & Woodbury, supra note 2, at 2.

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the Merger Guidelines were adopted is the application of per se rules in within the safe harbor to move other than the two already mentioned price-fixing cases.16 This presumption forward.19 that meet these criteria. The domain in of illegality is not based upon a belief Whether the Commission should which flexibility would be reduced with that it is impossible for a horizontal adopt a GUPPI-based safe harbor is adoption of a reasonable safe harbor is restraint among competitors to increase particularly relevant in the instant small and the costs of doing so welfare. Rather, the per se prohibition matter, as the FTC had data sufficient to correspondingly low. on naked price fixing ‘‘reflects a calculate GUPPIs for Dollar Tree, The Commission rejects a GUPPI safe judgment that the costs of identifying Deals,20 and Family Dollar stores. The harbor on the grounds that such an exceptions to the general rule so far sheer number of stores owned and approach ‘‘ignores the reality that outweigh the costs of occasionally operated by the parties rendered merger analysis is inherently fact- condemning conduct that might upon individualized, in-depth analysis of the specific.’’ 14 The Commission appears further inspection prove to be competitive nuances of each and every especially concerned that a GUPPI- acceptable, that it is preferable not to market difficult, if not impossible, to based safe harbor might result in a false entertain defenses to the conduct at conduct. GUPPI calculations provided negative—that is, it is possible that a all.’’ 17 Similar decision-theoretic logic an efficient and workable alternative to merger with a GUPPI less than 5 percent explains, for example, the presumption identifying the small fraction of markets harms competition. This objection to that above-cost prices are lawful.18 A in which the transaction may be safe harbors and bright-line rules and GUPPI-based presumption would be anticompetitive. This was a tremendous presumptions is both conceptually based upon the same economic logic— amount of work and I want to commend misguided and is in significant tension not that small-GUPPI mergers can never staff on taking this approach. Staff with antitrust doctrine and agency result in anticompetitive effects, but identified a GUPPI threshold such that practice. Merger analysis is, of course, rather that mergers involving small stores with GUPPIs greater than the inherently fact specific. One can accept GUPPIs are sufficiently unlikely to threshold were identified for that reality, as well as the reality that result in unilateral price increases such divestiture. About half of the 330 stores evidence is both imperfect and can be that incurring the costs of identifying divested as part of the Commission’s costly to obtain, and yet still conclude exceptions to the safe harbor is less Order were identified through this that the optimal legal test from a efficient than simply allowing mergers process. consumer welfare perspective is a rule What about the other stores? The rather than a standard. This is a basic 16 See Broad. Music, Inc. v. Columbia Broad. Sys., Commission asserts I insight of decision theory, which Inc., 441 U.S. 1, 19–20 (1979) (‘‘More generally, in ‘‘mischaracterize[]’’ its use of GUPPIs provides a lens through which characterizing this conduct under the per se rule, and that ‘‘GUPPIs were not used as a our inquiry must focus on . . . whether the practice rigid presumption of harm.’’ 21 It claims economists and legal scholars have long facially appears to be one that would always or evaluated antitrust legal rules, burdens, almost always tend to restrict competition and that GUPPIs were used only as ‘‘an and presumptions.15 The Commission’s decrease output.’’). initial screen’’ to identify markets for assertion that the mere possibility of 17 Andrew I. Gavil, William E. Kovacic & Jonathan further analysis, and that the false negatives undermines in the B. Baker, Antitrust Law in Perspective: Cases, Commission ‘‘proceeded to consider the Concepts and Problems in Competition Policy 104– slightest the case for a safe harbor 05 (2d ed. 2008); see Barry Wright Corp. v. ITT results of the GUPPI analysis in reveals a misunderstanding of the Grinnell Corp., 724 F.2d 227, 234 (1st Cir. 1983) conjunction with numerous other economic analysis of legal rules. The (‘‘Rules that seek to embody every economic sources of information.’’ 22 The evidence relevant question is not which legal rule complexity and qualification may well, through the suggests otherwise. One might vagaries of administration, prove counter- reasonably hypothesize that further drives false positives or false negatives productive, undercutting the very economic ends to zero, but rather which legal rule they seek to serve. Thus, despite the theoretical consideration and analysis of minimizes the sum of the welfare costs possibility of finding instances in which horizontal associated with false negatives, false price fixing, or vertical price fixing, are 19 The Commission asserts that a GUPPI safe economically justified, the courts have held them harbor cannot be justified by economic theory and positives, and the costs of obtaining unlawful per se, concluding the administrative evidence unless a presumption of liability can also evidence and otherwise administering virtues of simplicity outweigh the occasional be supported. I appreciate the Commission the law. ‘economic’ loss.’’); Herbert Hovenkamp, The clarifying its view, but I believe it to be based upon Existing antitrust law regularly Antitrust Enterprise: Principle and Execution 50 a false equivalence. The Commission appears to (2005) (‘‘[N]ot every anticompetitive practice can be misunderstand the difference between evidence embraces bright-line rules and condemned.’’); Thomas A. Lambert, Book Review, sufficient to conclude harm is likely and evidence presumptions—rejecting the flexibility Tweaking Antitrust’s Business Model, 85 Tex. L. sufficient to conclude harm is unlikely. These are of a case-by-case standard taking full Rev. 153, 172 (2006) (‘‘Hovenkamp’s discussion of two very different economic propositions and it account of facts that vary across predatory and limit pricing reflects a key theme that should not be surprising that one might be runs throughout The Antitrust Enterprise: That substantiated while the other is not. For example, industries and firms. A simple example antitrust rules should be easily administrable, even one might rationally be uncomfortable pointing to if that means they must permit some the economic literature for support that mergers 14 Majority Statement, supra note 7, at 3. anticompetitive practices to go unpunished.’’). above a certain level of concentration are 15 See, e.g., C. Frederick Beckner III & Steven C. 18 See Brooke Grp. Ltd. v. Brown & Williamson sufficiently likely to harm competition to support Salop, Decision Theory and Antitrust Rules, 67 Tobacco Corp., 509 U.S. 209, 226 (1993); see also a presumption of antitrust liability, but also Antitrust L.J. 41 (1999); James C. Cooper, Luke M. Barry Wright Corp., 724 F.2d at 234 (‘‘Conversely, recognize the same body of economic theory and Froeb, Dan O’Brien & Michael G. Vita, Vertical we must be concerned lest a rule or precedent that evidence would indeed support a safe harbor for Antitrust Policy as a Problem of Inference, 23 Int’l authorizes a search for a particular type of mergers involving markets with thousands of J. Indus. Org. 639 (2005); Frank H. Easterbrook, The undesirable pricing behavior end up by competitors. To the extent the Commission appeals Limits of Antitrust, 63 Tex. L. Rev. 1 (1984); Isaac discouraging legitimate price competition.... [A] to academics who have raised concerns with Ehrlich & Richard A. Posner, An Economic Analysis price cut that ends up with a price exceeding total GUPPI-based merger screens, my view clearly of Legal Rulemaking, 3 J. Legal Stud. 257 (1974); cost—in all likelihood a cut made by a firm with differs from the Commission. The Commission’s David S. Evans & A. Jorge Padilla, Designing market power—is almost certainly moving price in more important dispute, in my view, is with the Antitrust Rules for Assessing Unilateral Practices: A the ‘right’ direction (towards the level that would Merger Guidelines and its principal drafters, who Neo-Chicago Approach, 72 U. Chi. L. Rev. 27 be set in a competitive marketplace). The antitrust clearly contemplated such a safe harbor. (2005); Keith N. Hylton & Michael Salinger, Tying laws very rarely reject such ‘birds in hand’ for the 20 Deals is a separate banner under which Dollar Law and Policy: A Decision Theoretic Approach, 69 sake of more speculative (future low-price) ‘birds in Tree operates. See Majority Statement, supra note Antitrust L.J. 469 (2001); Geoffrey A. Manne & the bush.’ To do so opens the door to similar 7, at 1. Joshua D. Wright, Innovation and the Limits of speculative claims that might seek to legitimate 21 Id. at 2. Antitrust, 6 J. Comp. L. & Econ. 153 (2010). even the most settled unlawful practices.’’). 22 Id.

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‘‘numerous sources of information’’ is no empirical evidence to support the Once it is understood that a safe should result in both the identification use of GUPPI calculations in merger harbor should apply, it becomes obvious of some stores above the GUPPI analysis on a standalone basis, let alone that, for the safe harbor to be effective, threshold that were ultimately the use of a particular GUPPI threshold the threshold should not move. As the determined unlikely to harm to predict whether a transaction is likely plane crash survivors in LOST can competition as well as some stores with to substantially harm competition.24 I attest, a harbor on an island that cannot GUPPIs below the threshold that also agree that in the context of a full- be found and that can be moved at will nonetheless did create competitive scale evaluation of whether a proposed is hardly ‘‘safe.’’ 28 problems—that is, further scrutiny transaction is likely to harm might reveal both false negatives and competition, GUPPI-based analysis can In my view, the Commission should false positives. and should be interpreted in adopt a GUPPI-based safe harbor in unilateral effects investigations where The number of stores with GUPPIs conjunction with all other available exceeding the identified threshold that, quantitative and qualitative evidence. data are available. While reasonable after evaluation in conjunction with the The relevant policy question is a narrow minds can and should debate the qualitative and other evidence described one: Whether there exists a GUPPI optimal definition of a ‘‘small’’ GUPPI, by the Commission, were not slated for threshold below which the Commission my own view is that 5 percent is a divestiture is nearly zero. This outcome should presumptively conclude a reasonable starting point for discussion. is indistinguishable from the proposed transaction is unlikely to Furthermore, failure to adopt a safe application of a presumption of violate the antitrust laws. harbor could raise concerns about the competitive harm. The additional stores The FTC has not publicly endorsed a potential for divergence between with GUPPIs below the threshold that GUPPI-based safe harbor of 5 percent Commission and Division policy in were then identified for divestiture and disappointingly, has rejected the unilateral effects merger based upon additional qualitative concept in its statement today. The investigations.29 What would be most factors included a significant number of Commission’s interpretation is that problematic, however, is if, rather than what is a ‘‘proportionately small’’ value stores with GUPPIs below 5 percent. moving toward a GUPPI-based safe of diverted sales should vary according The ratio of stores falling below the harbor, the FTC were to use GUPPI to the industry—and even the GUPPI threshold but deemed thresholds to employ a presumption of individual firms—in a given problematic after further qualitative competitive harm.30 investigation.25 As discussed, I believe evidence is taken into account to stores this interpretation contradicts the letter with GUPPIs above the threshold but and spirit of the Merger Guidelines.26 in concentration and number of firms pre- and post- deemed not to raise competitive merger); Statement of the Federal Trade Moreover, the Commission’s apparent problems after qualitative evidence is Commission, ZF Friedrichshafen AG, FTC File No. discomfort with safe harbors on the accounted for is unusual and 141–0235 (May 8, 2015) (finding liability based grounds that they are not sufficiently upon number of firms pre- and post-merger); Mem. remarkably high. It is difficult to flexible to take into account the fact- in Supp. of Pl. Federal Trade Commission’s Mot. for conceive of a distribution of qualitative T.R.O. and Prelim. Inj. at 23, FTC, v. Sysco Corp., intensive nature of antitrust analysis in 2015 WL 1501608, No. 1:15–cv–00256 (D.D.C. 2015) and other evidence occurring in real- any specific matter is difficult to world markets that would result in this (arguing that the proposed merger was reconcile with its ready acceptance of presumptively unlawful based upon the holding of ratio. Qualitative evidence should not presumptions and bright-line rules that United States v. Phila. Nat’l Bank, 374 U.S. 321 be a one-way ratchet confirming the trigger liability.27 (1963)). That the Commission’s tolerance of Commission’s conclusion of likely presumptions that that satisfy its own prima facie burden does not extend to safe harbors raises basic anticompetitive effects when GUPPIs generate many false condemnations of mergers that questions about the symmetry of the burdens are high and providing an independent are, on the whole, beneficial.’’). applied in its antitrust analysis. See Dissenting basis for the same conclusion when 24 See Dennis W. Carlton, Revising the Horizontal Statement of Commissioner Joshua D. Wright 6, GUPPIs are low. Merger Guidelines, 10 J. Competition L. & Econ. 1, Ardagh Group S.A., FTC File No. 131–0087 (June 7 (2010) (‘‘Perhaps most importantly, UPP [as 18, 2014) (‘‘[S]ymmetrical treatment in both theory I applaud the FTC for taking described in the 2010 Merger Guidelines] is new and practice of evidence proffered to discharge the important initial steps in applying more and little empirical analysis has been performed to respective burdens of proof facing the agencies and sophisticated economic tools in validate its predictive value in assessing the merging parties is necessary for consumer-welfare conducting merger analysis where the competitive effects of mergers.’’); Keyte & Schwartz, based merger policy.’’). supra note 11, at 590 (discussing the 2010 Merger 28 Move the Island, LOST—Move the Island, data are available to do so. Scoring Guidelines’ inclusion of the GUPPI and opining that YouTube (Nov. 17, 2008), https:// metrics for evaluating incentives for ‘‘in light of the [its] extremely light judicial record, www.youtube.com/watch?v=Fa57rVkLal4. unilateral price increases are no doubt as well as the absence of demonstrated reliability 29 I do not take a position as to how the Division a significant improvement over simply in predicting real-world competitive effects, we currently uses the GUPPI analysis. But see Majority think it is premature, at best, to embrace [it] as a Statement, supra note 7, at 4 n.12. However, public counting the number of firms in markets screening tool for merger review’’); Simons & Coate, statements by the Division and the Commission— pre- and post-transaction. To be clear, it supra note 23 (‘‘Because screening mechanisms the only sources upon which business firms and the bears repeating that I agree that a [such as the GUPPI] purport to highlight general antitrust bar can rely—suggest there are material GUPPI-based presumption of results, they need empirical support to show the differences. Compare id. at 3 (‘‘[W]hether the value methodology actually predicts concerns relatively of diverted sales is considered ‘proportionately competitive harm is inappropriate at well. This empirical support is not available at this small’ compared to lost revenues will vary from 23 this stage of economic learning. There time.’’); Lambert, supra note 8, at 13 (the GUPPI industry to industry and firm to firm.’’) with ‘‘has not been empirically verified as a means of Shapiro, supra note 3, at 24 (‘‘Current Division 23 Joseph J. Simons & Malcolm B. Coate, Upward identifying anticompetitive mergers’’). practice is to treat the value of diverted sales as Pressure on Price Analysis: Issues and Implications 25 Majority Statement, supra note 7, at 3. proportionately small if it is no more than 5% of for Merger Policy, 6 Eur. Competition J. 377, 389 26 See supra text accompanying note 12. the lost revenues.’’). (2010) (the upward pricing pressure screen 27 For example, the Commission regularly applies 30 A GUPPI-based safe harbor of the type ‘‘identifies as potentially problematic far more such presumptions of liability involving the endorsed by the Merger Guidelines implies a GUPPI mergers than would be challenged or even number of firms in a market, or presumptions based above the threshold is necessary but not sufficient investigated under the enforcement standards that upon increased market concentration as articulated for liability. A GUPPI-based presumption of harm have existed for more than twenty years’’); Lambert, by the Merger Guidelines or the courts. See, e.g., implies a GUPPI above the threshold is sufficient supra note 8, at 13 (‘‘In the end, the agencies’ Statement of the Federal Trade Commission, but not necessary for liability. Unfortunately, the reliance on the difficult-to-administer, empirically Holcim Ltd., FTC File No. 141–0129 (May 8, 2015) use of GUPPIs here is more consistent with the unverified, and inherently biased GUPPI is likely to (finding liability based upon, alternatively, changes latter than the former.

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For these reasons, I dissent in part Flowers/IC 9000–0054, U.S. Flag Air information is accurate, and based on from and concur in part with the Carriers Statement. valid assumptions and methodology; Commission’s decision. Instructions: Please submit comments ways to enhance the quality, utility, and [FR Doc. 2015–17767 Filed 7–17–15; 8:45 am] only and cite Information Collection clarity of the information to be 9000–0054, U.S. Flag Air Carriers BILLING CODE 6750–01–P collected; and ways in which we can Statement, in all correspondence related minimize the burden of the collection of to this collection. All comments information on those who are to received will be posted without change respond, through the use of appropriate DEPARTMENT OF DEFENSE to http://www.regulations.gov, including technological collection techniques or any personal and/or business other forms of information technology. GENERAL SERVICES confidential information provided. Obtaining Copies of Proposals: ADMINISTRATION FOR FURTHER INFORMATION CONTACT: Mr. Requesters may obtain a copy of the Curtis E. Glover, Sr. Procurement information collection documents from NATIONAL AERONAUTICS AND Analyst, Contract Policy Division, GSA the General Services Administration, SPACE ADMINISTRATION 202–501–1448 or via email at Regulatory Secretariat Division (MVCB), [OMB Control No. 9000–0054]; [Docket [email protected]. 1800 F Street NW., Washington, DC 2015–0053; Sequence 3] SUPPLEMENTARY INFORMATION: 20405, telephone 202–501–4755. Please cite OMB Control No. 9000–0054, Submission to OMB for Review; A. Purpose Submission for OMB Review; U.S.-Flag Federal Acquisition Regulation; U.S.- Section 5 of the International Air Air Carriers Statement, in all Flag Air Carriers Statement Transportation Fair Competitive correspondence. Practices Act of 1974 (49 U.S.C. 1517) Dated: July 15, 2015. AGENCY: Department of Defense (DOD), (Fly America Act) requires that all Edward Loeb, General Services Administration (GSA), Federal agencies and Government and National Aeronautics and Space contractors and subcontractors at FAR Director, Office of Government-wide Administration (NASA). Acquisition Policy, Office of Acquisition 47.402, use U.S.-flag air carriers for U.S. Policy, Office of Government-wide Policy. ACTION: Notice of request for public Government-financed international air [FR Doc. 2015–17762 Filed 7–17–15; 8:45 am] comments regarding an extension to an transportation of personnel (and their existing OMB clearance. personal effects) or property, to the BILLING CODE 6820–EP–P extent that service by those carriers is SUMMARY: Under the provisions of the available. It requires the Comptroller Paperwork Reduction Act, the General of the United States, in the DEPARTMENT OF HEALTH AND Regulatory Secretariat will be absence of satisfactory proof of the HUMAN SERVICES submitting to the Office of Management necessity for foreign-flag air Centers for Disease Control and and Budget (OMB) a request to review transportation, to disallow expenditures Prevention and approve a previously approved from funds, appropriated or otherwise information collection requirement established for the account of the United concerning U.S. Flag Air Carriers Multi-Agency Informational Meeting States, for international air Concerning Compliance With the Statement. A notice was published in transportation secured aboard a foreign- the Federal Register at 80 FR 15789 on Federal Select Agent Program; Public flag air carrier if a U.S.-flag air carrier is Webcast March 25, 2015. No comments were available to provide such services. In received. the event that the contractor selects a AGENCY: Centers for Disease Control and DATES: Submit comments on or before carrier other than a U.S.-flag air carrier Prevention (CDC), Department of Health August 19, 2015. for international air transportation and Human Services (HHS). ADDRESSES: Submit comments during performance of the contract, the ACTION: Notice of public webcast. identified by Information Collection contractor shall include per FAR clause 9000–0054, U.S. Flag Air Carriers 52.247–64 a statement on vouchers SUMMARY: The HHS Centers for Disease Statement by any of the following involving such transportation. The Control and Prevention’s Division of methods: contracting officer uses the information Select Agents and Toxins (DSAT) and • Regulations.gov: http:// furnished in the statement to determine the USDA Animal and Plant Health www.regulations.gov. Submit comments whether adequate justification exists for Inspection Service (APHIS), Agriculture via the Federal eRulemaking portal by the contractor’s use of other than a U.S.- Select Agent Services (AgSAS) are searching the OMB control number flag air carrier. jointly charged with the oversight of the possession, use and transfer of 9000–0054. Select the link ‘‘Comment B. Annual Reporting Burden Now’’ that corresponds with biological agents and toxins that have Respondents: 150. ‘‘Information Collection ‘‘Information the potential to pose a severe threat to Responses per Respondent: 2. public, animal or plant health or to Collection 9000–0054, U.S. Flag Air Annual Responses: 300. Carriers Statement’’. Follow the animal or plant products (select agents Hours per Response: .25. and toxins). This joint effort constitutes instructions provided on the screen. Total Burden Hours: 75. Please include your name, company the Federal Select Agent Program. The name (if any), and ‘‘Information C. Public Comments purpose of the webcast is to provide Collection 9000–0054, U.S. Flag Air Public comments are particularly guidance related to the Federal Select Carriers Statement’’ on your attached invited on: Whether this collection of Agent Program for interested document. information is necessary for the proper individuals. • Mail: General Services performance of functions of the FAR, DATES: The webcast will be held on Administration, Regulatory Secretariat and whether it will have practical Thursday, November 19, 2015 from 12 Division (MVCB), 1800 F Street NW., utility; whether our estimate of the p.m. to 4 p.m. EST. All who wish to join Washington, DC 20405. ATTN: Ms. public burden of this collection of the webcast must register by October 23,

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2015. Registration instructions can be Times And Dates: 1:00 p.m.–2:30 ACTION: Notice with comment period. found on the Web site http:// p.m., EDT, August 11, 2015 www.selectagents.gov. Place: This meeting will be held by SUMMARY: The Centers for Disease Control and Prevention (CDC), as part of ADDRESSES: The webcast will be teleconference. To participate in the teleconference, please dial (866) 763– its continuing efforts to reduce public broadcast from the Centers for Disease burden and maximize the utility of Control and Prevention’s facility, 1600 0273 Passcode: 6158968. Status: This meeting is open to the government information, invites the Clifton Road, Atlanta, GA 30333. This general public and other Federal will only be produced as a webcast, public, limited only by the availability of telephone ports. The public is agencies to take this opportunity to therefore no accommodations will be comment on proposed and/or provided for in-person participation. welcome to participate during the public comment period, which is continuing information collections, as FOR FURTHER INFORMATION CONTACT: required by the Paperwork Reduction tentatively scheduled from 2:15 to 2:30 CDC: Ms. Diane Martin, Division of Act of 1995. This notice invites p.m. Select Agents and Toxins, Office of comment on the Paul Coverdell Purpose: The Subcommittee will Public Health Preparedness and National Acute Stroke Program provide advice to the CDC Director Response, Centers for Disease Control (PCNASP) reporting system, which was through the ACD on strategic and other and Prevention, 1600 Clifton Road, NE., established to improve quality of care health disparities and health equity MS A–46, Atlanta, GA 30329; phone: for acute stroke patients from onset of issues and provide guidance on 404–718–2000; email: [email protected]. signs and symptoms through hospital opportunities for CDC. APHIS: Dr. Keith Wiggins, APHIS care and rehabilitation and recovery. Agriculture Select Agent Services, 4700 Matters For Discussion: The Health DATES: Written comments must be River Road, Unit 2, Riverdale, MD Disparities Subcommittee members will received on or before September 18, 20737; phone: 301–851–3300 (option 3); discuss progress toward implementation 2015. email: [email protected]. of the Health Disparities Subcommittee SUPPLEMENTARY INFORMATION: The recommendations and discuss the ADDRESSES: You may submit comments, public webcast is an opportunity for the intersection of health disparities and identified by Docket No. CDC–2015– affected community (i.e., registered women’s health. 0056 by any of the following methods: entity responsible officials, alternate The agenda is subject to change as Federal eRulemaking Portal: responsible officials, and entity owners) priorities dictate. Regulation.gov. Follow the instructions and other interested individuals to Contact Person For More Information: for submitting comments. obtain specific regulatory guidance and Leandris Liburd, Ph.D., M.P.H., M.A., Mail: Leroy A. Richardson, information concerning biosafety, Designated Federal Officer, Health Information Collection Review Office, security and incident response issues Disparities Subcommittee, Advisory Centers for Disease Control and related to the Federal Select Agent Committee to the Director, CDC, 1600 Prevention, 1600 Clifton Road NE., MS– Program. Clifton Road, NE., M/S K–77, Atlanta, D74, Atlanta, Georgia 30329. Representatives from the Federal Georgia 30333 Telephone (770) 488– Instructions: All submissions received Select Agent Program will be present 8343, Email: [email protected]. must include the agency name and during the webcast to address questions The Director, Management Analysis Docket Number. All relevant comments and concerns from the Web participants. and Services Office, has been delegated received will be posted without change Individuals who want to participate the authority to sign Federal Register to Regulations.gov, including any in the webcast must complete their notices pertaining to announcements of personal information provided. For registration online by October 23, 2015. meetings and other committee access to the docket to read background The registration instructions are located management activities, for both the documents or comments received, go to on this Web site: http:// Centers for Disease Control and Regulations.gov. www.selectagents.gov. Prevention and the Agency for Toxic Please note: All public comment should be Dated: July 15, 2015. Substances and Disease Registry. submitted through the Federal eRulemaking portal (Regulations.gov) or by U.S. mail to the Pamela J. Cox, Elaine L. Baker, address listed above. Director, Division of the Executive Secretariat, Director, Management Analysis and Services FOR FURTHER INFORMATION CONTACT: Centers for Disease Control and Prevention. Office, Centers for Disease Control and To [FR Doc. 2015–17734 Filed 7–17–15; 8:45 am] Prevention. request more information on the proposed project or to obtain a copy of BILLING CODE 4163–18–P [FR Doc. 2015–17661 Filed 7–17–15; 8:45 am] the information collection plan and BILLING CODE 4163–18–P instruments, contact the Information DEPARTMENT OF HEALTH AND Collection Review Office, Centers for HUMAN SERVICES DEPARTMENT OF HEALTH AND Disease Control and Prevention, 1600 HUMAN SERVICES Clifton Road NE., MS–D74, Atlanta, Centers for Disease Control and Georgia 30329; phone: 404–639–7570; Prevention Centers for Disease Control and Email: [email protected]. Prevention SUPPLEMENTARY INFORMATION: Under the Advisory Committee to the Director Paperwork Reduction Act of 1995 (PRA) (ACD), Centers for Disease Control and [60Day–15–15AUJ; Docket No. CDC–2015– (44 U.S.C. 3501–3520), Federal agencies Prevention—Health Disparities 0056] must obtain approval from the Office of Subcommittee (HDS) Proposed Data Collection Submitted Management and Budget (OMB) for each In accordance with section 10(a)(2) of for Public Comment and collection of information they conduct the Federal Advisory Committee Act Recommendations or sponsor. In addition, the PRA also (Pub. L. 92–463), the Centers for Disease requires Federal agencies to provide a Control and Prevention (CDC) AGENCY: Centers for Disease Control and 60-day notice in the Federal Register announces the following meeting of the Prevention (CDC), Department of Health concerning each proposed collection of aforementioned subcommittee: and Human Services (HHS). information, including each new

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proposed collection, each proposed recurrent strokes. However, many The new cooperative agreement extension of existing collection of strokes are preventable, or their severity funding cycle will include pre-hospital information, and each reinstatement of can be reduced through coordinated (EMS), in-hospital, and post-hospital previously approved information care that is delivered in a timely patient care data. Data to be collected collection before submitting the manner. for pre- and in-hospital care closely collection to OMB for approval. To Stroke outcomes depend upon the align with standards of The Joint comply with this requirement, we are rapid recognition of signs and Commission (TJC), the American Heart publishing this notice of a proposed symptoms of stroke, prompt transport to Association’s Get With The Guidelines data collection as described below. a treatment facility, and early (GWTG) program, and the National Comments are invited on: (a) Whether rehabilitation. Improving outcomes Emergency Medical Services the proposed collection of information requires a coordinated systems Information System (NEMSIS). CDC and is necessary for the proper performance approach involving pre-hospital care, awardees will work on defining of the functions of the agency, including emergency department and hospital performance measures for the post- whether the information shall have care, rehabilitation, prevention of hospital transition of care setting. Data practical utility; (b) the accuracy of the complications, and ongoing secondary from these three settings will be agency’s estimate of the burden of the prevention. Each care setting has unique transmitted from the awardees to CDC proposed collection of information; (c) opportunities for improving the quality quarterly. The average burden per ways to enhance the quality, utility, and of care provided and access to available response for this data will vary between clarity of the information to be professional and clinical care at the 30–90 minutes. The burden will be 30 collected; (d) ways to minimize the local level within a coordinated state- minutes each for independent burden of the collection of information based system of care. submission of information relating to on respondents, including through the Through the Paul Coverdell National the pre-hospital, in-hospital, and post- use of automated collection techniques Acute Stroke Program (PCNASP), CDC hospital phases of patient care. or other forms of information has been continuously working to Alternatively, the burden will be 90 technology; and (e) estimates of capital measure and improve acute stroke care minutes for awardees who transmit or start-up costs and costs of operation, using well-known quality improvement maintenance, and purchase of services strategies coupled with frequent pre-, in-, and post-hospital data as one to provide information. Burden means evaluation of results. PCNASP awardees combined file. CDC accepts file the total time, effort, or financial are state health departments who work transmissions as individual phases or resources expended by persons to with participating hospitals and EMS combined. generate, maintain, retain, disclose or agencies in their jurisdictions to In addition, the new cooperative provide information to or for a Federal improve quality of care for stroke agreement funding cycle will also agency. This includes the time needed patients. State-based efforts include include primary data collection of to review instructions; to develop, identifying effective stroke treatment hospital inventory data to understand acquire, install and utilize technology centers and building capacity and the capacity and infrastructure of the and systems for the purpose of infrastructure to ensure that stroke hospitals that admit and treat stroke collecting, validating and verifying patients are routed to effective treatment patients. Each hospital will report information, processing and centers in a timely manner. inventory information to its PCNASP maintaining information, and disclosing During initial cooperative agreement awardee annually. The average burden and providing information; to train cycles, PCNASP awardees focused on per response is 15 minutes. In addition, personnel and to be able to respond to in-hospital quality of care (QoC) issues each PCNASP awardee will prepare an a collection of information, to search with technical assistance provided by annual aggregate hospital inventory file data sources, to complete and review CDC. Through lessons learned during for transmission to CDC. The average the collection of information; and to this process and other supporting burden of reporting hospital inventory transmit or otherwise disclose the evidence in the field, it has become information for each PCNASP awardee information. evident that it is also important to is 8 hours per response. All patient, examine pre- and post-hospital hospital, and EMS provider data that is Proposed Project transitions of care to link the entire submitted to CDC by PCNASP awardees Paul Coverdell National Acute Stroke continuum of stroke care when will be de-identified and occur through Program (PCNASP)—New—National improving QoC for stroke patients. secure data systems. Center for Chronic Disease Prevention The PCNASP will continue under a Proposed data elements and quality and Health Promotion (NCCDPHP), new five-year cooperative agreement, indicators may be updated over time to Centers for Disease Control and subject to available funding, to begin on include new or revised items based on Prevention (CDC). or around July 1, 2015. The new funding period reflects additional emphasis on evolving recommendations and Background and Brief Description pre-hospital quality of care as well as standards in the field to improve the Stroke is the fifth leading cause of the post-hospital transition of care quality of stroke care. death in the United States and results in setting from hospital to home and the OMB approval is requested for three approximately 130,000 deaths per year. next care provider. Therefore, awardees years. All information is submitted to Additionally, approximately 800,000 will systematically collect and report CDC electronically. Participation is stroke events are reported each year, data on hospital capacity and all three voluntary and there are no costs to including approximately 250,000 phases of the stroke care continuum. respondents other than their time.

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ESTIMATED ANNUALIZED BURDEN HOURS

Average Number of Number of burden per Total burden Type of respondent Form name respondents responses per response (in hrs.) respondent (in hrs.)

PCNASP Awardee ...... Hospital Inventory ...... 9 1 8 72 In-hospital care data ...... 9 4 30/60 18 Pre-hospital care data ...... 9 4 30/60 18 Post-hospital transition of care data 9 4 30/60 18 Hospital ...... Hospital Inventory ...... 400 1 15/60 100

Total ...... 226

Leroy A. Richardson, found on the HHS/CDC’s Import Permit DEPARTMENT OF HEALTH AND Chief, Information Collection Review Office, Program Web site, http://www.cdc.gov/ HUMAN SERVICES Office of Scientific Integrity, Office of the od/eaipp/importApplication/ Associate Director for Science, Office of the agents.htm. Centers for Disease Control and Director, Centers for Disease Control and Prevention Prevention. ADDRESSES: The webcast will be [FR Doc. 2015–17699 Filed 7–17–15; 8:45 am] broadcast from the Centers for Disease Advisory Board on Radiation and BILLING CODE 4163–18–P Control and Prevention, 1600 Clifton Worker Health (ABRWH or Advisory Road NE., Atlanta, Georgia 30329. Board), National Institute for Occupational Safety and Health DEPARTMENT OF HEALTH AND FOR FURTHER INFORMATION CONTACT: Von (NIOSH) HUMAN SERVICES McClee, Division of Select Agents and Toxins, Office of Public Health Correction: This notice was published Centers for Disease Control and Preparedness and Response, Centers for in the Federal Register on June 30, Prevention Disease Control and Prevention, 1600 2015, Volume 80, Number 125, Pages Clifton Road NE., MS A–46, Atlanta, GA Informational Meeting: The Importation 37263–37264. The time and date should 30333; phone: 404–718–2000; email: and Exportation of Infectious read as follows: Biological Agents, Infectious [email protected]. Time and Date: 8:15 a.m.–5:30 p.m., Substances and Vectors; Public SUPPLEMENTARY INFORMATION: This Mountain Time, July 23, 2015. Webcast webcast is an opportunity for the Public Comment Time and Date: 5:30 regulated community (i.e., academic AGENCY: Centers for Disease Control and p.m.–6:30 p.m., Mountain Time, July 23, institutions and biomedical centers, Prevention (CDC), Department of Health 2015. and Human Services (HHS). commercial manufacturing facilities, Contact Person for More Information: ACTION: Notice of public webcast. federal, state, and local laboratories, including clinical and diagnostic Theodore Katz, Designated Federal SUMMARY: The Centers for Disease laboratories, research facilities, Officer, NIOSH, CDC, 1600 Clifton Road Control and Prevention (CDC), exhibition facilities, and educational NE., MS E–20, Atlanta, Georgia 30333, Department of Health and Human facilities) and other interested telephone: (513) 533–6800, toll free: 1– Services (HHS) is hosting a public individuals to obtain specific regulatory 800–CDC–INFO, email: [email protected]. webcast which will include guidance and information regarding The Director, Management Analysis representatives from the U.S. import and export regulations. The and Services Office, has been delegated Department of Transportation, USDA webcast will also provide assistance to the authority to sign Federal Register Animal and Plant Health Inspection those interested in applying for an Services, CDC Division of Global notices pertaining to announcements of Migration and Quarantine, U.S. Customs import or export permit (or license) meetings and other committee and Border Protection, U.S. Department from federal agencies within the United management activities for both the of Commerce, U.S. Food and Drug States. Centers for Disease Control and Administration, HHS/Office of the Instructions for registration are found Prevention and the Agency for Toxic Assistant Secretary for Preparedness on the HHS/CDC’s Import Permit Substances and Disease Registry. and Response/Biomedical Advanced Program Web site, http://www.cdc.gov/ Elaine L. Baker, Research and Development Authority. od/eaipp/importApplication/ Director, Management Analysis and Services This public webcast will address import agents.htm. Participants must register Office, Centers for Disease Control and and export regulations for infectious by September 2, 2015. This is a webcast Prevention. biological agents, infectious substances, only event and there will be no on-site [FR Doc. 2015–17704 Filed 7–17–15; 8:45 am] and vectors, and import and export participation at the HHS/CDC broadcast exemptions. The purpose of this notice facility. BILLING CODE 4163–18–P is to inform all interested parties, including those individuals and entities Dated: July 15, 2015. already possessing an import or export Pamela J. Cox, permit (or license) of the webcast. Director, Division of the Executive Secretariat, DATES: The webcast will be held on Centers for Disease Control and Prevention. September 16, 2015 from 11 a.m. to 4 [FR Doc. 2015–17735 Filed 7–17–15; 8:45 am] p.m. EDT. Registration instructions are BILLING CODE 4163–18–P

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DEPARTMENT OF HEALTH AND within the Family and Youth Services This study will primarily analyze data HUMAN SERVICES Bureau of the Administration for previously collected by the NDVH and Children and Families (ACF), U.S. NDAH/LIR as part of their ongoing Administration for Children and Department of Health and Human program activities and monitoring. ACF Families Services (HHS), serve as partners in the proposes to collect additional intervention, prevention, and resource information, including information Proposed Information Collection assistance efforts of the network of about the preferred mode (phone, chat, Activity; Comment Request family violence, domestic violence, and text), ease of use, and perceived safety dating violence service providers. of each mode of contact. Title: Accomplishments of the In order to describe the activities and Domestic Violence Hotline, Online accomplishments of the NDVH and This data is to be collected through Connections and Text (ADVHOCaT) NDAH/LIR and develop potential new voluntary web-based surveys that are to Study. or revised performance measures, the be completed by those who access the OMB No.: New Collection. Office of Planning, Research and NDVH and NDAH/LIR Web sites. This Description: The National Domestic Evaluation (OPRE), within ACF/HHS is information will be critical to informing Violence Hotline (NDVH) and the proposing data collection activity as future efforts to monitor and improve National Dating Abuse Helpline or Love part of the Accomplishments of the the performance of domestic violence Is Respect (NDAH/LIR), which are Domestic Violence Hotline, Online hotlines and provide hotline services. supported by the Division of Family Connections and Text (ADVHOCaT) Respondents: Individuals who access Violence Prevention and Services Study. the NDVH and NDAH/LIR Web sites.

ANNUAL BURDEN ESTIMATES

Total/annual Number of Instrument number of responses per Average burden hours per Annual burden respondents respondent response hours

NDVH/LIR Preference of Use Survey ...... 5000 1 0.041 hours (150 seconds) .... 205

Estimated Total Annual Burden comments and suggestions submitted impact of market claim information in Hours: 205 hours. within 60 days of this publication. direct-to-consumer (DTC) print advertising for prescription drugs. In compliance with the requirements Karl Koerper, of Section 3506(c)(2)(A) of the Reports Clearance Officer. DATES: Submit either electronic or written comments on the collection of Paperwork Reduction Act of 1995, the [FR Doc. 2015–17687 Filed 7–17–15; 8:45 am] information by September 18, 2015. Administration for Children and BILLING CODE 4184–01–P Families is soliciting public comment ADDRESSES: Submit electronic on the specific aspects of the comments on the collection of information collection described above. DEPARTMENT OF HEALTH AND information to http:// Copies of the proposed collection of HUMAN SERVICES www.regulations.gov. Submit written information can be obtained and comments on the collection of comments may be forwarded by writing Food and Drug Administration information to the Division of Dockets to the Administration for Children and [Docket No. FDA–2015–N–2406] Management (HFA–305), Food and Drug Families, Office of Planning, Research Administration, 5630 Fishers Lane, Rm. and Evaluation, 370 L’Enfant Agency Information Collection 1061, Rockville, MD 20852. All Promenade SW., Washington, DC 20447, Activities; Proposed Collection; comments should be identified with the Attn: OPRE Reports Clearance Officer. Comment Request; Market Claims in docket number found in brackets in the Email address: OPREinfocollection@ Direct-to-Consumer Prescription Drug heading of this document. acf.hhs.gov. All requests should be Print Ads FOR FURTHER INFORMATION CONTACT: FDA identified by the title of the information PRA Staff, Office of Operations, Food AGENCY: collection. Food and Drug Administration, and Drug Administration, 8455 HHS. The Department specifically requests Colesville Rd., COLE–14526, Silver ACTION: Notice. comments on (a) whether the proposed Spring, MD 20993–0002, PRAStaff@ fda.hhs.gov. collection of information is necessary SUMMARY: The Food and Drug for the proper performance of the Administration (FDA) is announcing an SUPPLEMENTARY INFORMATION: Under the functions of the agency, including opportunity for public comment on the PRA (44 U.S.C. 3501–3520), Federal whether the information shall have proposed collection of certain Agencies must obtain approval from the practical utility; (b) the accuracy of the information by the Agency. Under the Office of Management and Budget agency’s estimate of the burden of the Paperwork Reduction Act of 1995 (the (OMB) for each collection of proposed collection of information; (c) PRA), Federal Agencies are required to information they conduct or sponsor. the quality, utility, and clarity of the publish notice in the Federal Register ‘‘Collection of information’’ is defined information to be collected; and (d) concerning each proposed collection of in 44 U.S.C. 3502(3) and 5 CFR ways to minimize the burden of the information and to allow 60 days for 1320.3(c) and includes Agency requests collection of information on public comment in response to the or requirements that members of the respondents, including through the use notice. This notice solicits comments on public submit reports, keep records, or of automated collection techniques or research entitled, ‘‘Market Claims in provide information to a third party. other forms of information technology. Direct-to-Consumer Prescription Drug Section 3506(c)(2)(A) of the PRA (44 Consideration will be given to Print Ads.’’ This study will examine the U.S.C. 3506(c)(2)(A)) requires Federal

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Agencies to provide a 60-day notice in shape), whereas extrinsic cues are The project consists of two parts; a the Federal Register concerning each product-related but not part of the main study and a followup study. proposed collection of information product (e.g., price and brand name) Pretesting will be conducted to assess before submitting the collection to OMB (Refs. 1, 2). Research has found that and identify problems with the for approval. To comply with this both intrinsic and extrinsic cues can questionnaire, stimuli, and procedures. requirement, FDA is publishing notice influence perceptions of product quality Participants will be consumers who self- of the proposed collection of (Ref. 3). Consumers may rely on product identify as having been diagnosed with information set forth in this document. cues in the absence of explicit quality diabetes. All participants will be 18 With respect to the following information. The objective quality of years of age or older. We will exclude collection of information, FDA invites prescription drugs is not easily obtained individuals from the consumer sample comments on these topics: (1) Whether from promotional claims in DTC ads; who work in healthcare or marketing the proposed collection of information thus consumers may rely upon extrinsic settings because their knowledge and is necessary for the proper performance cues to inform their decisions. Market experiences may not reflect those of the of FDA’s functions, including whether claims such as ‘‘#1 prescribed’’ and average consumer. Recruitment and the information will have practical ‘‘new’’ may act as extrinsic cues about administration of the study will take utility; (2) the accuracy of FDA’s the product’s quality, independent of place over the Internet. Participation is estimate of the burden of the proposed the product’s intrinsic characteristics. estimated to take no more than 30 collection of information, including the Prior research has found that market minutes. validity of the methodology and leadership claims can affect consumer assumptions used; (3) ways to enhance In the main study, participants will be beliefs about product efficacy, as well as randomly assigned to view one of nine the quality, utility, and clarity of the their beliefs about doctors’ judgments information to be collected; and (4) possible versions of an ad, as depicted about product efficacy (Ref. 4). One in table 1. The two variables of interest ways to minimize the burden of the limitation of these prior studies is the collection of information on are type of market claim (#1 Prescribed, lack of quantitative information about New) and level of efficacy information respondents, including through the use product efficacy in the information of automated collection techniques, (high, low, or none). Efficacy provided to respondents. Research information will be operationalized in when appropriate, and other forms of indicates that providing consumers with information technology. the form of simple quantitative efficacy information generally improves information (for example, product X can Market Claims in Direct-to-Consumer understanding and facilitates provide 50 percent relief for up to 60 Prescription Drug Print Ads—OMB decisionmaking (Refs. 5, 6). Efficacy percent of patients). We will investigate Control Number 0910—NEW information may moderate the effect of memory, perception, and understanding Section 1701(a)(4) of the Public the extrinsic cue by providing insight of product risks and benefits; perception Health Service Act (42 U.S.C. into characteristics that would and understanding of the market claim; 300u(a)(4)) authorizes the FDA to otherwise be unknown. Other research perception of product quality; conduct research relating to health has shown that consumers are able to perceptions of product acceptance by information. Section 1003(d)(2)(C) of the use information about efficacy to inform doctor, intention to seek more Federal Food, Drug, and Cosmetic Act judgments about the product (Refs. 6, 7). information about the product; and (the FD&C Act) (21 U.S.C. 393(d)(2)(C)) The Office of Prescription Drug perceptions of trust/skepticism authorizes FDA to conduct research Promotion plans to investigate, through regarding product claims and the relating to drugs and other FDA empirical research, the impact of market sponsor. To examine differences regulated products in carrying out the claims on prescription drug product between experimental conditions, we provisions of the FD&C Act. perceptions with and without will conduct inferential statistical tests The marketing literature divides quantitative information about product such as analysis of variance. With the product attributes (‘‘cues’’) into intrinsic efficacy. This will be investigated in sample size described below, we will and extrinsic. Intrinsic cues are physical DTC print advertising for prescription have sufficient power to detect small- to characteristics of the product (e.g., size, drugs. medium-sized effects in the main study.

TABLE 1—MAIN STUDY DESIGN TYPE OF MARKET CLAIM

#1 Prescribed New None (control)

Efficacy Level Information: High ...... A B C Low ...... D E F None (control) ...... G H I

The followup study will examine the DTC print ads over 48 trials. One set of asked to choose one product on one or tradeoff between efficacy level and DTC ads will feature the two claims more dependent measures. market share claim using decision from the main study. The other set of FDA estimates the burden of this analysis techniques. Participants will be DTC ads will depict 48 different levels collection of information as follows: asked to choose between two different of product efficacy. Participants will be

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TABLE 2—ESTIMATED BURDEN 1

Number of Activity Number of responses per Total annual Average burden Total hours respondents respondent respondents per response

Sample outgo (pretests and main survey) ...... 16,384 ...... Screener completes ...... 1,638 1 1,638 .03 (2 minutes) 49 Eligible ...... 1,556 ...... Completes, Pretest 1 ...... 252 1 252 .5 (30 minutes) 126 Completes, Pretest 2 ...... 252 1 252 .5 (30 minutes) 126 Completes, Main Study ...... 495 1 495 .5 (30 minutes) 248 Completes, Pretest 3 ...... 108 1 108 .25 (15 minutes) 27 Completes, Followup Study ...... 216 1 216 .25 (15 minutes) 54

Total ...... 630 1 There are no capital costs or operating and maintenance costs associated with this collection of information.

References DEPARTMENT OF HEALTH AND meetings will be held monthly. It is The following references have been HUMAN SERVICES anticipated that they will commence in placed on display in the Division of September or October 2015. Food and Drug Administration Dockets Management (see ADDRESSES) ADDRESSES: Submit notification of and may be seen by interested persons [Docket No. FDA–2010–N–0128] intention to participate in monthly between 9 a.m. and 4 p.m., Monday stakeholder meetings by email to through Friday, and are available Prescription Drug User Fee Act; [email protected]. electronically at http:// Stakeholder Consultation Meetings on The meetings will be held at the FDA www.regulations.gov. the Prescription Drug User Fee Act campus, 10903 New Hampshire Ave., Reauthorization; Request for Silver Spring, MD 20993. 1. Lee, M. and Y.C. Lou, ‘‘Consumer Reliance Notification of Stakeholder Intention on Intrinsic and Extrinsic Cues in FOR FURTHER INFORMATION CONTACT: To Participate Product Evaluations: A Conjoint Graham Thompson, Center for Drug Approach,’’ Journal of Applied Business AGENCY: Food and Drug Administration, Evaluation and Research, Food and Research, 12(1), pp. 21–29 (2011). HHS. Drug Administration, 10903 New 2. Teas, R.K. and S. Agarwal, ‘‘The Effects of Extrinsic Product Cues on Consumers’ ACTION: Notice; request for notification Hampshire Ave., Bldg. 51, Rm. 1146, Perceptions of Quality, Sacrifice, and of participation. Silver Spring, MD 20993, 301–796– Value,’’ Journal of the Academy of 5003, FAX: 301–847–8443. SUMMARY Marketing Science, 28(2), pp. 278–290 : The Food and Drug SUPPLEMENTARY INFORMATION: (2000). Administration (FDA or Agency) is 3. Rao, A.R. and K.B. Monroe, ‘‘The Effect of issuing this notice to request that public I. Background Price, Brand Name, and Store Name on stakeholders—including patient and FDA is requesting that public Buyers’ Perceptions of Product Quality: consumer advocacy groups, health care stakeholders—including patient and An Integrative Review,’’ Journal of professionals, and scientific and Marketing Research, pp. 351–357 (1989). consumer advocacy groups, health care 4. Mitra, A., J.L. Swasy, and K.J. Aikin, ‘‘How academic experts—notify FDA of their professionals, and scientific and Do Consumers Interpret Market intent to participate in periodic academic experts—notify the Agency of Leadership Claims in Direct-to- consultation meetings on the their intent to participate in periodic Consumer Advertising of Prescription reauthorization of the Prescription Drug stakeholder consultation meetings on Drugs?’’ Advances in Consumer User Fee Act (PDUFA). The statutory the reauthorization of PDUFA. PDUFA Research, 33, pp. 381–387 (2006). authority for PDUFA expires in authorizes FDA to collect user fees from 5. O’Donoghue, A., H.K. Sullivan, D. Aikin, September 2017. At that time, new R. Chowdhury, et al., ‘‘Presenting the regulated industry for the process Efficacy Information in Direct to legislation will be required for FDA to for the review of human drugs. The Consumer Prescription Drug continue collecting user fees for the authorization for the current program Advertisements,’’ Patient Education prescription drug program. The Federal (PDUFA V) expires in September 2017. Counsel, 95(2), pp. 271–80 (2014). Food, Drug, and Cosmetic Act (the Without new legislation, FDA will no 6. Schwartz, L.M., S. Woloshin, and H.G. FD&C Act) requires that FDA consult longer be able to collect user fees for Welch, ‘‘Using a Drug Facts Box to with a range of stakeholders in Communicate Drug Benefits and future fiscal years to fund the human developing recommendations for the drug review process. Harmstwo Randomized Trials,’’ Annals next PDUFA program. The FD&C Act of Internal Medicine, 150(8), pp. 516–527 Section 736B(d) of the FD&C Act (21 (2009). also requires that FDA hold discussions U.S.C. 379h–2(d)) requires that FDA 7. Sullivan, H.W., A. C. O’Donoghue, and K.J. (at least every month) with patient and consult with a range of stakeholders, Aikin, ‘‘Presenting Quantitative consumer advocacy groups during including representatives from patient Information About Placebo Rates to FDA’s negotiations with the regulated and consumer groups, health care Patients,’’ JAMA Internal Medicine, doi: industry. The purpose of this request for professionals, and scientific and 10.1001/jamainternmed.2013.10399 notification is to ensure continuity and (2013). academic experts, in developing progress in these monthly discussions recommendations for the next PDUFA Dated: July 15, 2015. by establishing consistent stakeholder program. FDA will initiate the Leslie Kux, representation. reauthorization process by holding a Associate Commissioner for Policy. DATES: Submit notification of intention public meeting on July 15, 2015, where [FR Doc. 2015–17725 Filed 7–17–15; 8:45 am] to participate in these series of meetings stakeholders and other members of the BILLING CODE 4164–01–P by August 28, 2015. Stakeholder public will be given an opportunity to

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present their views on the DEPARTMENT OF HEALTH AND Under section 306(d)(4)(C) and reauthorization. The FD&C Act further HUMAN SERVICES (d)(4)(D) of the FD&C Act, FDA may requires that FDA continue meeting limit the period of debarment of a with these stakeholders at least once Food and Drug Administration permanently debarred individual if the every month during negotiations with Agency finds that: (1) The debarred the regulated industry to continue [Docket No. FDA–1992–N–0199] individual has provided substantial discussions of stakeholder views on the assistance in the investigation or reauthorization. It is anticipated that David J. Brancato: Grant of Special prosecution of offenses described in these monthly stakeholder consultation Termination; Final Order Terminating section 306(a) or (b) of the FD&C Act or meetings will commence in September Debarment relating to a matter under FDA’s or October 2015. AGENCY: Food and Drug Administration, jurisdiction; (2) termination of the FDA is issuing this Federal Register HHS. debarment serves the interest of justice; notice to request that stakeholder and (3) termination of the debarment representatives from patient and ACTION: Notice. does not threaten the integrity of the consumer groups, health care SUMMARY: The Food and Drug drug approval process. professional associations, as well as Administration (FDA) is issuing an Special termination of debarment is scientific and academic experts, notify order under the Federal Food, Drug, and discretionary with FDA. FDA generally FDA of their intent to participate in the Cosmetic Act (the FD&C Act) granting considers a determination by the Department of Justice concerning the periodic stakeholder consultation special termination of the debarment of substantial assistance of a debarred meetings on PDUFA reauthorization. David J. Brancato. FDA bases this order individual conclusive in most cases. Dr. FDA believes that consistent on a finding that Dr. Brancato provided Brancato cooperated with the United stakeholder representation at these substantial assistance in the States Attorney’s Office in the meetings will be important to ensure investigations or prosecutions of investigation of several individuals, as progress in these discussions. If you offenses relating to a matter under substantiated by letters submitted to the wish to participate in the stakeholder FDA’s jurisdiction, and that special Agency by Thomas Holland, a Special consultation meetings, please designate termination of Dr. Brancato’s debarment Agent in the Office of the Inspector one or more representatives from your serves the interest of justice and does organization who will commit to General, U.S. Department of Health and not threaten the integrity of the drug Human Services, and the U.S. attending these meetings and preparing approval process. for the discussions. Stakeholders who Attorney’s Office for the District of identify themselves through this notice DATES: This order is effective July 20, Columbia. His cooperation contributed will be included in all stakeholder 2015. to the successful prosecution of these consultation discussions while FDA ADDRESSES: Comments should reference individuals, and in one instance negotiates with the regulated industry. If Docket No. FDA–1992–N–0199 and be continued over a period of 7 years. a stakeholder decides to participate in sent to the Division of Dockets Accordingly, FDA finds that Dr. these monthly meetings at a later time, Management (HFA–305), Food and Drug Brancato provided substantial assistance that stakeholder may join the remaining Administration, 5630 Fishers Lane, Rm. as required by section 306(d)(4)(C) of monthly stakeholder consultation 1061, Rockville, MD 20852. the FD&C Act. The additional requisite showings, meetings after notifying FDA of this FOR FURTHER INFORMATION CONTACT: i.e., that termination of debarment intention (see ADDRESSES). These Kenny Shade, Office of Regulatory stakeholder discussions will satisfy the serves the interest of justice and poses Affairs, Food and Drug Administration, no threat to the integrity of the drug consultation requirement in section 12420 Parklawn Dr. (ELEM–4144), 736B(d)(3) of the FD&C Act. approval process, are difficult standards Rockville, MD 20857, 301–796–4640. to satisfy. In determining whether these II. Notification of Intent To Participate SUPPLEMENTARY INFORMATION: In a have been met, the Agency weighs the in Periodic Stakeholder Consultation Federal Register notice dated January 6, significance of all favorable and Meetings 1994 (59 FR 00751), David J. Brancato, unfavorable factors in light of the If you intend to participate in a former review chemist with FDA’s remedial, public health-related purposes continued periodic stakeholder Division of Generic Drugs was underlying debarment. Termination of consultation meetings regarding PDUFA permanently debarred from providing debarment will not be granted unless, reauthorization, please provide services in any capacity to a person with weighing all favorable and unfavorable notification by email to an approved or pending drug product information, there is a high level of [email protected] by application under section 306(a) of the assurance that the conduct that formed August 28, 2015. Your email should FD&C Act (21 U.S.C. 335a(a)). The the basis for debarment has not recurred contain complete contact information, debarment was based on FDA’s finding and will not recur, and that the including name, title, affiliation, that Dr. Brancato was convicted of a individual will not otherwise pose a address, email address, phone number, felony under Federal law for conduct threat to the integrity of the drug and notice of any special relating to the development, or approval approval process. accommodations required because of of any drug product, or otherwise The evidence presented to FDA in disability. Stakeholders will receive relating to the regulation of a drug support of termination shows that Dr. confirmation and additional information product. On May 26, 1998, Dr. Brancato Brancato was convicted for a first about the first meeting after FDA applied for special termination of offense; that he has no prior or receives this notification. debarment, under section 306(d)(4) of subsequent convictions for conduct the FD&C Act, as amended by the described under the FD&C Act and has Dated: July 14, 2015. Generic Drug Enforcement Act. On committed no other wrongful acts Leslie Kux, April 15, 2015, the Agency requested affecting the drug approval process; and Associate Commissioner for Policy. additional information. On April 20, that his character and scientific [FR Doc. 2015–17684 Filed 7–17–15; 8:45 am] 2015, Dr. Brancato provided the accomplishments are highly regarded by BILLING CODE 4164–01–P requested information. his professional peers. The evidence

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presented supports the conclusion that substances that may be used by facilities may be used by a facility registered as the conduct upon which Dr. Brancato’s registered as outsourcing facilities under an outsourcing facility under section debarment was based is unlikely to the Federal Food, Drug, and Cosmetic 503B of the FD&C Act (21 U.S.C. 353B) recur. For these reasons, the Agency Act (the FD&C Act) to compound animal to compound drugs for use in animals finds that termination of Dr. Brancato’s drugs from bulk substances, in in accordance with FDA’s draft GFI debarment serves the interest of justice accordance with FDA’s draft guidance #230, ‘‘Compounding Animal Drugs and will not pose a threat to the for industry (GIF) #230, ‘‘Compounding from Bulk Drug Substances.’’ That integrity of the drug approval process. Animal Drugs from Bulk Drug notice describes the information that Under section 306(d)(4)(D) of the Substances.’’ The FDA is taking this should be provided to the FDA in FD&C Act, the period of debarment of action in response to a request for an support of each nomination. an individual who qualifies for special extension to allow interested persons termination may be limited to less than additional time to submit nominations. FDA has received a request for a 90- day extension of the nomination period permanent but to no less than 1 year. Dr. DATES: Submit either electronic or Brancato’s period of debarment, which written nominations for the bulk drug as the requestor wanted more time to commenced on January 6, 1994, has substances list by November 16, 2015. nominate drugs to the list and to provide supporting data. FDA has lasted more than 1 year. Accordingly, ADDRESSES: You may submit the Director of the Office of Enforcement nominations by any of the following considered the request and is extending and Import Operations, under section methods: the nomination period for 90 days, until 306(d)(4) of the FD&C Act and under November 16, 2015. The FDA believes authority delegated to the Director (Staff Electronic Submissions that a 90-day extension allows adequate Manual Guide 1410.35), finds that Submit electronic nominations in the time for interested persons to submit David J. Brancato’s application for following way: nominations without significantly special termination of debarment should • Federal eRulemaking Portal: http:// delaying consideration of these be granted, and that the period of www.regulations.gov. Follow the nominations. debarment should terminate instructions for submitting comments. immediately, thereby allowing him to II. Nomination Process provide services in any capacity to a Written Submissions The process for nominations for bulk person with an approved or pending Submit written nominations in the drug substances that may be used by drug product application. The Director following ways: of Enforcement and Import Operations • Mail/Hand delivery/Courier (for facilities registered as outsourcing further finds that because the Agency is paper submissions): Division of Dockets facilities under section 503B of the granting Dr. Brancato’s application, an Management (HFA–305), Food and Drug FD&C Act to compound animal drugs informal hearing under section Administration, 5630 Fishers Lane, Rm. from bulk drug substances is described 306(d)(4)(C) of the FD&C Act is 1061, Rockville, MD 20852. in the previous notice published May unnecessary. Instructions: All submissions received 19, 2015. FDA cannot guarantee that all As a result of the foregoing findings, must include the Docket No. FDA– drugs nominated during the nomination Dr. David J. Brancato’s debarment is 2015–N–1196. All nominations received period will be considered for initial terminated effective (see DATES) (21 may be posted without change to inclusion in Appendix A at the time of U.S.C. 335a(d)(4)(C) and (d)(4)(D)). http://www.regulations.gov, including its initial publication. Nominations any personal information provided. For Dated: July 15, 2015. submitted during the nomination period additional information on submitting Leslie Kux, (ending on November 16, 2015) that are nominations, see the ‘‘Request for not evaluated and included in Associate Commissioner for Policy. Nominations’’ heading of the Appendix A at the time of its initial [FR Doc. 2015–17712 Filed 7–17–15; 8:45 am] SUPPLEMENTARY INFORMATION section of publication will receive consideration BILLING CODE 4164–01–P this document. for later addition to Appendix A. In Docket: For access to the docket to addition, individuals and organizations read background documents or may petition FDA, in accordance with DEPARTMENT OF HEALTH AND nominations received, go to http:// 21 CFR 10.30, to make additional HUMAN SERVICES www.regulations.gov and insert the amendments to Appendix A after the docket number, found in brackets in the Food and Drug Administration nomination period. heading of this document, into the [Docket No. FDA–2015–N–1196] ‘‘Search’’ box and follow the prompts III. Request for Nominations and/or go to the Division of Dockets List of Bulk Drug Substances That May Management, 5630 Fishers Lane, Rm. Interested persons may submit either Be Used by an Outsourcing Facility To 1061, Rockville, MD 20852. electronic nominations to http:// Compound Drugs for Use in Animals; FOR FURTHER INFORMATION CONTACT: Neal www.regulations.gov or written Extension of Nomination Period Bataller, Center for Veterinary Medicine, nominations to the Division of Dockets Management (see ADDRESSES). It is only AGENCY: Food and Drug Administration, Food and Drug Administration (HFV– HHS. 210), 7519 Standish Pl., Rockville, MD necessary to send one set of 20855, 240–402–5745, neal.bataller@ nominations. Identify nominations with ACTION: Notice; extension of nomination fda.hhs.gov. the docket number found in brackets in period. SUPPLEMENTARY INFORMATION: the heading of this document. Received SUMMARY: The Food and Drug nominations may be seen in the Administration (FDA) is extending the I. Background Division of Dockets Management nomination period for the notice that In the Federal Register of May 19, between 9 a.m. and 4 p.m., Monday appeared in the Federal Register of May 2015 (80 FR 28622), FDA published a through Friday, and will be posted to 19, 2015. In the notice, FDA requested notice with a 90-day nomination period the docket at http:// nominations for a list of bulk drug for the list of bulk drug substances that www.regulations.gov.

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Dated: July 15, 2015. meet relevant legal and regulatory which is generally known as the Leslie Kux, requirements. ‘‘Orange Book.’’ Under FDA regulations, Associate Commissioner for Policy. a drug is removed from the list if the FOR FURTHER INFORMATION CONTACT: Agency withdraws or suspends [FR Doc. 2015–17729 Filed 7–17–15; 8:45 am] Stacy Kane, Center for Drug Evaluation approval of the drug’s NDA or ANDA BILLING CODE 4164–01–P and Research, Food and Drug for reasons of safety or effectiveness, or Administration, 10903 New Hampshire if FDA determines that the listed drug Ave., Bldg. 51, Rm. 6207, Silver Spring, DEPARTMENT OF HEALTH AND was withdrawn from sale for reasons of MD 20993–0002, 301–796–8363. HUMAN SERVICES safety or effectiveness (21 CFR 314.162). SUPPLEMENTARY INFORMATION: In 1984, Under § 314.161(a) (21 CFR Food and Drug Administration Congress enacted the Drug Price 314.161(a)), the Agency must determine Competition and Patent Term whether a listed drug was withdrawn [Docket No. FDA–2015–N–2412] Restoration Act of 1984 (Pub. L. 98–417) from sale for reasons of safety or (the 1984 amendments), which effectiveness: (1) Before an ANDA that Determination That TESSALON authorized the approval of duplicate refers to that listed drug may be (Benzonatate) Capsules and Other versions of drug products approved approved, (2) whenever a listed drug is Drug Products Were Not Withdrawn under an ANDA procedure. ANDA voluntarily withdrawn from sale and From Sale for Reasons of Safety or sponsors must, with certain exceptions, ANDAs that refer to the listed drug have Effectiveness show that the drug for which they are been approved, and (3) when a person seeking approval contains the same petitions for such a determination under AGENCY: Food and Drug Administration, active ingredient in the same strength 21 CFR 10.25(a) and 10.30. Section HHS. and dosage form as the ‘‘listed drug,’’ 314.161(d) provides that if FDA ACTION: Notice. which is a version of the drug that was determines that a listed drug was previously approved. ANDAs applicants withdrawn from sale for safety or SUMMARY: The Food and Drug do not have to repeat the extensive effectiveness reasons, the Agency will Administration (FDA) has determined clinical testing otherwise necessary to initiate proceedings that could result in that the drug products listed in this gain approval of a new drug application the withdrawal of approval of the document were not withdrawn from (NDA). ANDAs that refer to the listed drug. sale for reasons of safety or The 1984 amendments include what FDA has become aware that the drug effectiveness. This determination means is now section 505(j)(7) of the Federal products listed in the table are no longer that FDA will not begin procedures to Food, Drug, and Cosmetic Act (21 U.S.C. being marketed. (As requested by the withdraw approval of abbreviated new 355(j)(7)), which requires FDA to applicant, FDA withdrew approval of drug applications (ANDAs) that refer to publish a list of all approved drugs. NDA 050448 for GRIFULVIN these drug products, and it will allow FDA publishes this list as part of the (griseofulvin) Oral Suspension in the FDA to continue to approve ANDAs that ‘‘Approved Drug Products with Federal Register of August 16, 2001 (66 refer to the products as long as they Therapeutic Equivalence Evaluations,’’ FR 43017)).

Application No. Drug Applicant

NDA 011210 ...... TESSALON (benzonatate) Capsule; Oral 200 milligrams (mg) Pfizer Inc., 1 Giralda Farms, Madison, NJ 07940. NDA 012093 ...... ISORDIL (isosorbide dinitrate) Tablet; Oral 10 mg, 20 mg, 30 Valeant Pharmaceuticals North America, LLC, 400 Somerset mg. Corporate Blvd., Bridgewater, NJ 08807. NDA 018702 ...... ACLOVATE (alclometasone dipropionate) Ointment; Topical Fougera Pharmaceuticals Inc., 60 Baylis Rd., P.O. Box 2006, 0.05%. Melville, NY 11747. NDA 018707 ...... ACLOVATE (alclometasone dipropionate) Cream; Topical Do. 0.05%. NDA 018936 ...... SARAFEM (fluoxetine hydrochloride (HCl)) Capsule; Oral Eli Lilly and Co., Lilly Corp. Ctr., Indianapolis, IN 46285. Equivalent to (EQ) 10 mg Base, EQ 20 mg Base. NDA 018988 ...... VASOCIDIN (prednisolone sodium phosphate; sulfacetamide Novartis Pharmaceuticals Corp., 105 Eisenhower Pky., 280 sodium), Solution/Drops; Ophthalmic, EQ 0.23% phos- Corporate Center, Roseland, NJ 07068. phate; 10%. NDA 019898 ...... PRAVACHOL (pravastatin sodium) Tablet; Oral 10 mg ...... Bristol-Myers Squibb Co., P.O. Box 4000, Princeton, NJ 08543–4000. NDA 020092 ...... DILACOR XR (diltiazem HCl) Capsule, Extended-Release; Actavis Laboratories UT, Inc., 577 Chipeta Way, Salt Lake Oral 120 mg, 180 mg, 240 mg. City, UT 84108. NDA 021551 ...... HALFLYTELY (polyethylene glycol 3350; potassium chloride; Braintree Laboratories, Inc., 60 Columbia St., P.O. Box sodium bicarbonate; sodium chloride) For Solution and 850929, Braintree, MA 02185. bisacodyl Delayed-Release Tablets); Oral 210 grams (g); 0.74 g; 2.86 g; 5.6 g; 5 mg. NDA 021871 ...... LOESTRIN 24 FE (ethinyl estradiol; norethindrone acetate) Warner Chilcott Co. LLC, Union Street Rd. 195 KM 1.1., Tablet; Oral 0.02 mg; 1 mg. Fajardo, Puerto Rico 00738. NDA 050448 ...... GRIFULVIN V (griseofulvin, microcrystalline) Suspension; Johnson & Johnson Consumer Products Co., 199 Grandview Oral 125 mg/5 milliliters (mL). Rd., Skillman, NJ 08558. NDA 050719 ...... HELIDAC (bismuth subsalicylate; metronidazole; tetracycline Prometheus Laboratories Inc., 9410 Carroll Park Dr., San HCl) Tablet, Chewable, Tablet, Capsule; Oral 262.4 mg; Diego, CA 92121. 250 mg, 500 mg. ANDA 040454.... PROMETHAZINE HYDROCHLORIDE (promethazine HCl) Teva Pharmaceuticals USA, 425 Privet Rd., Horsham, PA Injectable; Injection 25 mg/mL, 50 mg/mL. 19044. ANDA 062483 .... GRIFULVIN V (griseofulvin, microsize) Suspension; Oral 125 Valeant Pharmaceuticals Luxembourg S.a.r.l, C/O Valeant mg/5 mL. Pharmaceuticals North America LLC, 400 Somerset Cor- porate Blvd., Bridgewater, NJ 08807.

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Application No. Drug Applicant

ANDA 088762.... PROMETH W/DEXTROMETHORPHAN (dextromethorphan G&W Laboratories Inc.,111 Coolidge St., South Plainfield, NJ hydrobromide; promethazine HCl) Syrup; Oral 15 mg/5 mL; 07080. 6.25 mg/5 mL.

FDA has reviewed its records and, DATES: Although you can comment on capsules in January 2006. There are no under § 314.161, has determined that any guidance at any time (see 21 CFR approved ANDAs for this product. In the drug products listed in this 10.115(g)(5)), to ensure that the Agency August 2010, we issued a draft guidance document were not withdrawn from considers your comments on this draft for industry on BE recommendations for sale for reasons of safety or guidance before it begins work on the generic lubiprostone capsules. We are effectiveness. Accordingly, the Agency final version of the guidance, submit now issuing a revised draft guidance for will continue to list the drug products either electronic or written comments industry on BE recommendations for listed in this document in the on the draft guidance by September 18, generic lubiprostone capsules ‘‘Discontinued Drug Product List’’ 2015. (‘‘Bioequivalence Recommendations for section of the Orange Book. The ADDRESSES: Submit written requests for Lubiprostone’’). ‘‘Discontinued Drug Product List’’ single copies of the draft guidance to the In January 2014, Sucampo Pharma identifies, among other items, drug Division of Drug Information, Center for Americas, LLC, manufacturer of the products that have been discontinued Drug Evaluation and Research, Food reference listed drug, AMITIZA, from marketing for reasons other than and Drug Administration, 10001 New submitted a citizen petition requesting safety or effectiveness. Hampshire Ave., Hillandale Building, that FDA revise the BE requirements for Approved ANDAs that refer to the 4th Floor, Silver Spring, MD 20993– any new drug product that references NDAs and ANDAs listed in this 0002. Send one self-addressed adhesive AMITIZA and seeks approval by means document are unaffected by the label to assist that office in processing of demonstrating BE to AMITIZA. FDA discontinued marketing of the products your requests. See the SUPPLEMENTARY has reviewed the issues raised in the subject to those NDAs and ANDAs. INFORMATION section for electronic petition and is responding to the Additional ANDAs that refer to these access to the draft guidance document. petition (Docket No. FDA–2014–P– products may also be approved by the Submit electronic comments on the 0144). Agency if they comply with relevant draft guidance to http:// legal and regulatory requirements. If www.regulations.gov. Submit written This draft guidance is being issued FDA determines that labeling for these comments to the Division of Dockets consistent with FDA’s good guidance drug products should be revised to meet Management (HFA–305), Food and Drug practices regulation (21 CFR 10.115). current standards, the Agency will Administration, 5630 Fishers Lane, Rm. The draft guidance, when finalized, will advise ANDA applicants to submit such 1061, Rockville, MD 20852. represent the Agency’s current thinking labeling. on the design of BE studies to support FOR FURTHER INFORMATION CONTACT: ANDAs for lubiprostone capsules. It Dated: July 15, 2015. Xiaoqiu Tang, Center for Drug does not create or confer any rights for Leslie Kux, Evaluation and Research (HFD–600), or on any person and does not operate Associate Commissioner for Policy. Food and Drug Administration, 10903 to bind FDA or the public. An New Hampshire Ave., Bldg. 75, Rm. [FR Doc. 2015–17730 Filed 7–17–15; 8:45 am] alternative approach may be used if 4730, Silver Spring, MD 20993–0002, BILLING CODE 4164–01–P such approach satisfies the 301–796–5850. requirements of the applicable statutes SUPPLEMENTARY INFORMATION: and regulations. DEPARTMENT OF HEALTH AND I. Background HUMAN SERVICES II. Comments In the Federal Register of June 11, Food and Drug Administration 2010 (75 FR 33311), FDA announced the Interested persons may submit either availability of a guidance for industry, electronic comments regarding this [Docket No. FDA–2007–D–0369] ‘‘Bioequivalence Recommendations for document to http://www.regulations.gov or written comments to the Division of Bioequivalence Recommendations for Specific Products,’’ which explained the process that would be used to make Dockets Management (see ADDRESSES). It Lubiprostone; Revised Draft Guidance is only necessary to send one set of for Industry; Availability product-specific BE recommendations available to the public on FDA’s Web comments. Identify comments with the AGENCY: Food and Drug Administration, site at http://www.fda.gov/Drugs/ docket number found in brackets in the HHS. GuidanceComplianceRegulatory heading of this document. Received comments may be seen in the Division ACTION: Notice. Information/Guidances/default.htm. As described in that guidance, FDA of Dockets Management between 9 a.m. SUMMARY: The Food and Drug adopted this process as a means to and 4 p.m., Monday through Friday, and Administration (FDA) is announcing the develop and disseminate product- will be posted to the docket at http:// availability of a revised draft guidance specific BE recommendations and www.regulations.gov. for industry on lubiprostone capsules provide a meaningful opportunity for III. Electronic Access entitled ‘‘Bioequivalence the public to consider and comment on Recommendations for Lubiprostone.’’ those recommendations. This notice Persons with access to the Internet The recommendations provide specific announces the availability of draft BE may obtain the document at either guidance on the design of recommendations for lubiprostone http://www.fda.gov/Drugs/Guidance bioequivalence (BE) studies to support capsules. ComplianceRegulatoryInformation/ abbreviated new drug applications FDA initially approved new drug Guidances/default.htm or http:// (ANDAs) for lubiprostone capsules. application (NDA) 021908 for AMITIZA www.regulations.gov.

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Dated: July 15, 2015. DEPARTMENT OF HEALTH AND The meeting will be closed to the Leslie Kux, HUMAN SERVICES public in accordance with the Associate Commissioner for Policy. provisions set forth in section 552b(c)(4) National Institutes of Health [FR Doc. 2015–17726 Filed 7–17–15; 8:45 am] and 552b(c)(6), Title 5 U.S.C., as amended. The contract proposals and BILLING CODE 4164–01–P Eunice Kennedy Shriver National the discussions could disclose Institute of Child Health and Human confidential trade secrets or commercial Development Notice of Closed Meeting DEPARTMENT OF HEALTH AND property such as patentable material, and personal information concerning HUMAN SERVICES Pursuant to section 10(d) of the Federal Advisory Committee Act, as individuals associated with the contract National Institutes of Health amended (5 U.S.C. App.), notice is proposals, the disclosure of which hereby given of the following meeting. would constitute a clearly unwarranted Center for Scientific Review; Notice of The meeting will be closed to the invasion of personal privacy. Closed Meeting public in accordance with the Name of Committee: National Institute of provisions set forth in section 552b(c)(4) Child Health and Human Development Pursuant to section 10(d) of the and 552b(c)(6), Title 5 U.S.C., as Special Emphasis Panel. Federal Advisory Committee Act, as amended. The grant applications and Date: August 12, 2015. amended (5 U.S.C. App.), notice is the discussions could disclose Time: 1:00 p.m. to 3:00 p.m. Agenda: To review and evaluate contract hereby given of the following meeting. confidential trade secrets or commercial property such as patentable material, proposals. The meeting will be closed to the and personal information concerning Place: National Institutes of Health, 6100 public in accordance with the Executive Boulevard, Rockville, MD 20852. individuals associated with the grant Contact Person: Sathasiva B. Kandasamy, provisions set forth in sections applications, the disclosure of which 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Ph.D., Scientific Review Officer, Scientific would constitute a clearly unwarranted Review Branch, Eunice Kennedy Shriver as amended. The grant applications and invasion of personal privacy. National Institute of Child Health and the discussions could disclose Name of Committee: National Institute of Human Development, NIH, 6100 Executive confidential trade secrets or commercial Child Health and Human Development Boulevard, Room 5B01, Bethesda, MD property such as patentable material, Special Emphasis Panel. 20892–9304, (301) 435–6680, skandasa@ and personal information concerning Date: August 31, 2015. mail.nih.gov. individuals associated with the grant Time: 12:00 p.m. to 5:00 p.m. (Catalogue of Federal Domestic Assistance applications, the disclosure of which Agenda: To review and evaluate grant Program Nos. 93.864, Population Research; applications. 93.865, Research for Mothers and Children; would constitute a clearly unwarranted Place: National Institutes of Health, 6100 93.929, Center for Medical Rehabilitation invasion of personal privacy. Executive Boulevard, Rockville, MD 20852. Research; 93.209, Contraception and Name of Committee: Center for Scientific Contact Person: Cathy Wedeen, Ph.D., Infertility Loan Repayment Program, National Review Special Emphasis Panel; Small Scientific Review Officer, Scientific Review Institutes of Health, HHS) Branch, Eunice Kennedy Shriver National Business: HIV/AIDS Innovative Research Institute of Child Health and Human Dated: July 14, 2015. Applications. Development, NIH, 6100 Executive Michelle Trout, Date: August 4, 2015. Boulevard, Room 5B01, Bethesda, MD Program Analyst, Office of Federal Advisory Time: 11:00 a.m. to 3:00 p.m. 20892–9304, (301) 435–6878, Committee Policy. Agenda: To review and evaluate grant [email protected]. applications. (Catalogue of Federal Domestic Assistance [FR Doc. 2015–17649 Filed 7–17–15; 8:45 am] Place: National Institutes of Health, 6701 Program Nos. 93.864, Population Research; BILLING CODE 4140–01–P Rockledge Drive, Bethesda, MD 20892 93.865, Research for Mothers and Children; (Virtual Meeting). 93.929, Center for Medical Rehabilitation Contact Person: Mark P Rubert, Ph.D., Research; 93.209, Contraception and DEPARTMENT OF HOMELAND Scientific Review Officer, Center for Infertility Loan Repayment Program, National Institutes of Health, HHS) SECURITY Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 5218, Dated: July 14, 2015. Federal Emergency Management MSC 7852, Bethesda, MD 20892, 301–435– Michelle Trout, Agency 1775, [email protected]. Program Analyst, Office of Federal Advisory [Docket ID FEMA–2015–0001] (Catalogue of Federal Domestic Assistance Committee Policy. Program Nos. 93.306, Comparative Medicine; [FR Doc. 2015–17646 Filed 7–17–15; 8:45 am] Final Flood Hazard Determinations 93.333, Clinical Research, 93.306, 93.333, BILLING CODE 4140–01–P 93.337, 93.393–93.396, 93.837–93.844, AGENCY: Federal Emergency 93.846–93.878, 93.892, 93.893, National Management Agency, DHS. Institutes of Health, HHS) DEPARTMENT OF HEALTH AND ACTION: Final Notice. HUMAN SERVICES Dated: July 14, 2015. SUMMARY: Flood hazard determinations, Michelle Trout, National Institutes of Health which may include additions or Program Analyst, Office of Federal Advisory Eunice Kennedy Shriver National modifications of Base Flood Elevations Committee Policy. Institute of Child Health and Human (BFEs), base flood depths, Special Flood [FR Doc. 2015–17648 Filed 7–17–15; 8:45 am] Development; Notice of Closed Hazard Area (SFHA) boundaries or zone designations, or regulatory floodways on BILLING CODE 4140–01–P Meeting the Flood Insurance Rate Maps (FIRMs) Pursuant to section 10(d) of the and where applicable, in the supporting Federal Advisory Committee Act, as Flood Insurance Study (FIS) reports amended (5 U.S.C. App.), notice is have been made final for the hereby given of the following meeting. communities listed in the table below.

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The FIRM and FIS report are the basis through the FEMA Map Service Center This final notice is issued in of the floodplain management measures at www.msc.fema.gov by the effective accordance with section 110 of the that a community is required either to date indicated above. Flood Disaster Protection Act of 1973, adopt or to show evidence of having in 42 U.S.C. 4104, and 44 CFR part 67. FOR FURTHER INFORMATION CONTACT: Luis effect in order to qualify or remain FEMA has developed criteria for Rodriguez, Chief, Engineering qualified for participation in the Federal floodplain management in floodprone Management Branch, Federal Insurance Emergency Management Agency’s areas in accordance with 44 CFR part and Mitigation Administration, (FEMA’s) National Flood Insurance 60. Program (NFIP). In addition, the FIRM FEMA500 C Street SW., Washington, DC 20472, (202) 646–4064, or (email) Luis. Interested lessees and owners of real and FIS report are used by insurance property are encouraged to review the agents and others to calculate [email protected]; or visit the FEMA Map Information eXchange new or revised FIRM and FIS report appropriate flood insurance premium available at the address cited below for rates for buildings and the contents of (FMIX) online at www.floodmaps.fema. gov/fhm/fmx_main.html. each community or online through the those buildings. FEMA Map Service Center at DATES: The effective date of August 3, SUPPLEMENTARY INFORMATION: The www.msc.fema.gov. 2015 which has been established for the Federal Emergency Management Agency FIRM and, where applicable, the (FEMA) makes the final determinations The flood hazard determinations are supporting FIS report showing the new listed below for the new or modified made final in the watersheds and/or or modified flood hazard information flood hazard information for each communities listed in the table below. for each community. community listed. Notification of these (Catalog of Federal Domestic Assistance No. ADDRESSES: The FIRM, and if changes has been published in 97.022, ‘‘Flood Insurance.’’) applicable, the FIS report containing the newspapers of local circulation and 90 Date: June 16, 2015. final flood hazard information for each days have elapsed since that Roy E. Wright, community is available for inspection at publication. The Deputy Associate Deputy Associate Administrator for Insurance the respective Community Map Administrator for Mitigation has and Mitigation, Department of Homeland Repository address listed in the tables resolved any appeals resulting from this Security, Federal Emergency Management below and will be available online notification. Agency.

Community Community map repository address

Augusta County, Virginia, and Incorporated Areas Docket No.: FEMA–B–1412

Unincorporated Areas of Augusta County ...... Augusta County Community Development Office, 18 Government Cen- ter Lane, Verona, VA 24482.

New Kent County, Virginia (All Jurisdictions) Docket No.: FEMA–B–1412

Unincorporated Areas of New Kent County ...... New Kent County Department of Planning and Community Develop- ment, 12007 Courthouse Circle, New Kent, VA 23124.

City of Portsmouth, Virginia (Independent City) Docket No.: FEMA–B–1404

City of Portsmouth ...... Department of Planning, City Hall Building, 801 Crawford Street, 4th Floor, Portsmouth, VA 23704.

Prince William County, Virginia, and Incorporated Areas Docket No.: FEMA–B–1401

Town of Dumfries ...... Town Hall, Zoning Administrator’s Office, 101 South Main Street, Dum- fries, VA 22026. Town of Quantico ...... Town Hall, 337 Fifth Avenue, Quantico, VA 22134. Unincorporated Areas of Prince William County ...... Prince William County Department of Public Works, Watershed Man- agement Branch, 5 County Complex Court, Prince William, VA 22192.

City of Suffolk, Virginia (Independent City) Docket No.: FEMA–B–1401

City of Suffolk ...... City Hall, Planning and Community Development Office, 442 West Washington Street, Suffolk, VA 23434.

[FR Doc. 2015–17666 Filed 7–17–15; 8:45 am] BILLING CODE 9110–12–P

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DEPARTMENT OF HOMELAND (Presidentially Declared Disasters); 97.039, Repository address listed in the tables SECURITY Hazard Mitigation Grant. below and will be available online through the FEMA Map Service Center Federal Emergency Management W. Craig Fugate, at www.msc.fema.gov by the effective Agency Administrator, Federal Emergency date indicated above. Management Agency. FOR FURTHER INFORMATION CONTACT: [FR Doc. 2015–17669 Filed 7–17–15; 8:45 am] Luis [Internal Agency Docket No. FEMA–4223– Rodriguez, Chief, Engineering BILLING CODE 9111–23–P DR; Docket ID FEMA–2015–0002] Management Branch, Federal Insurance and Mitigation Administration, FEMA, Texas; Amendment No. 3 to Notice of 500 C Street SW., Washington, DC a Major Disaster Declaration DEPARTMENT OF HOMELAND SECURITY 20472, (202) 646–4064, or (email) [email protected]; or visit AGENCY: Federal Emergency Federal Emergency Management the FEMA Map Information eXchange Management Agency, DHS. Agency (FMIX) online at ACTION: Notice. www.floodmaps.fema.gov/fhm/fmx_ [Docket ID FEMA–2015–0001] main.html. SUMMARY: This notice amends the notice Final Flood Hazard Determinations SUPPLEMENTARY INFORMATION: The of a major disaster declaration for the AGENCY: Federal Emergency Federal Emergency Management Agency State of Texas (FEMA–4223–DR), dated (FEMA) makes the final determinations May 29, 2015, and related Management Agency, DHS. ACTION: Final notice. listed below for the new or modified determinations. flood hazard information for each DATES: Effective date: June 16, 2015. SUMMARY: Flood hazard determinations, community listed. Notification of these which may include additions or changes has been published in FOR FURTHER INFORMATION CONTACT: modifications of Base Flood Elevations newspapers of local circulation and 90 Dean Webster, Office of Response and (BFEs), base flood depths, Special Flood days have elapsed since that Recovery, Federal Emergency Hazard Area (SFHA) boundaries or zone publication. The Deputy Associate Management Agency, 500 C Street SW., designations, or regulatory floodways on Administrator for Mitigation has Washington, DC 20472, (202) 646–2833. the Flood Insurance Rate Maps (FIRMs) resolved any appeals resulting from this SUPPLEMENTARY INFORMATION: The notice and where applicable, in the supporting notification. of a major disaster declaration for the Flood Insurance Study (FIS) reports This final notice is issued in State of Texas is hereby amended to have been made final for the accordance with section 110 of the include the following areas among those communities listed in the table below. Flood Disaster Protection Act of 1973, The FIRM and FIS report are the basis areas determined to have been adversely 42 U.S.C. 4104, and 44 CFR part 67. of the floodplain management measures affected by the event declared a major FEMA has developed criteria for that a community is required either to disaster by the President in his floodplain management in floodprone adopt or to show evidence of having in declaration of May 29, 2015. areas in accordance with 44 CFR part effect in order to qualify or remain 60. Dallas and Nueces Counties for Individual qualified for participation in the Federal Interested lessees and owners of real Assistance. Emergency Management Agency’s property are encouraged to review the Cooke, Fannin, Grayson, Liberty, and (FEMA’s) National Flood Insurance new or revised FIRM and FIS report Walker Counties for Individual Assistance Program (NFIP). In addition, the FIRM available at the address cited below for (already designated for Public Assistance). and FIS report are used by insurance each community or online through the The following Catalog of Federal Domestic agents and others to calculate FEMA Map Service Center at Assistance Numbers (CFDA) are to be used appropriate flood insurance premium for reporting and drawing funds: 97.030, www.msc.fema.gov. Community Disaster Loans; 97.031, Cora rates for buildings and the contents of those buildings. The flood hazard determinations are Brown Fund; 97.032, Crisis Counseling; made final in the watersheds and/or DATES: The effective date of August 17, 97.033, Disaster Legal Services; 97.034, communities listed in the table below. Disaster Unemployment Assistance (DUA); 2015 which has been established for the 97.046, Fire Management Assistance Grant; FIRM and, where applicable, the (Catalog of Federal Domestic Assistance No. 97.048, Disaster Housing Assistance to supporting FIS report showing the new 97.022, ‘‘Flood Insurance.’’) Individuals and Households In Presidentially or modified flood hazard information Date: June 16, 2015. Declared Disaster Areas; 97.049, for each community. Roy E. Wright, Presidentially Declared Disaster Assistance— Disaster Housing Operations for Individuals ADDRESSES: The FIRM, and if Deputy Associate Administrator for Insurance and Households; 97.050, Presidentially applicable, the FIS report containing the and Mitigation, Department of Homeland Declared Disaster Assistance to Individuals final flood hazard information for each Security, Federal Emergency Management and Households—Other Needs; 97.036, community is available for inspection at Agency. Disaster Grants—Public Assistance the respective Community Map I. Non-watershed-based studies:

Community Community map repository address

Navajo County, Arizona, and Incorporated Areas Docket No.: FEMA–B–1347

City of Holbrook ...... 465 1st Avenue, Holbrook, AZ 86025. City of Show Low ...... 180 North 9th Street, Show Low, AZ 85901. Town of Pinetop-Lakeside ...... 1360 North Niels Hansen Lane, Lakeside, AZ 85929.

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Community Community map repository address

Unincorporated Areas of Navajo County ...... Navajo County Flood Control District, 100 East Code Talkers Drive, Holbrook, AZ 86025.

Perry County, Indiana, and Incorporated Areas Docket No.: FEMA–B–1292

City of Cannelton ...... City Hall, 210 South 8th Street, Cannelton, IN 47520. City of Tell City ...... Planning and Zoning, City Hall, 700 Main Street, Tell City, IN 47586. Town of Troy ...... Town Hall, 330 Harrison Street, Troy, IN 47588. Unincorporated Areas of Perry County ...... Perry County Courthouse, 2219 Payne Street, Tell City, IN 47586.

Wicomico County, Maryland, and Incorporated Areas Docket No.: FEMA–B–1401

City of Fruitland ...... City Hall, 401 East Main Street, Fruitland, MD 21826. City of Salisbury ...... City Hall, 125 North Division Street, Salisbury, MD 21801. Town of Delmar ...... Town Hall, 100 South Pennsylvania Avenue, Delmar, MD 21875. Town of Mardela Springs ...... Town Hall, 201 Station Street, Mardela Springs, MD 21837. Town of Sharptown ...... Town Hall, 401 Main Street, Sharptown, MD 21861. Town of Willards ...... Town Hall, 7360 Main Street, Willards, MD 21874. Unincorporated Areas of Wicomico County ...... Wicomico County Government Office Building, 125 North Division Street, Room 201, Salisbury, MD 21801.

Sullivan County, New York (All Jurisdictions) Docket No.: FEMA–B–1404

Town of Neversink ...... Neversink Town Hall, 273 Main Street, Grahamsville, NY 12740.

Beaver County, Pennsylvania (All Jurisdictions) Docket No.: FEMA–B–1412

Borough of Ambridge ...... Borough Hall, 600 11th Street, Ambridge, PA 15603. Borough of Baden ...... Borough Hall, 149 State Street, Baden, PA 15005. Borough of Beaver ...... Borough Municipal Building, 469 Third Street, Beaver, PA 15009. Borough of Big Beaver ...... Big Beaver Borough Municipal Building, 114 Forest Drive, Darlington, PA 16115. Borough of Bridgewater ...... Bridgewater Borough Municipal Building, 199 Boundary Lane, Bridge- water, PA 15009. Borough of Conway ...... Borough Hall, 1208 Third Avenue, Conway, PA 15027. Borough of Darlington ...... Borough Hall, 604 Morris Street, Darlington, PA 16115. Borough of East Rochester ...... Borough Hall, 760 Spruce Avenue, East Rochester, PA 15074. Borough of Eastvale ...... Eastvale Borough Office, 510 Second Avenue, Eastvale, Beaver Falls, PA 15010. Borough of Economy ...... Economy Borough Municipal Building, 2856 Conway Wallrose Road, Baden, PA 15005. Borough of Fallston ...... Fallston Borough Secretary’s Office, 158 Beaver Street, Fallston, PA 15066. Borough of Freedom ...... Borough Municipal Complex, 901 3rd Avenue, Freedom, PA 15042. Borough of Georgetown ...... Office of the Borough Secretary, 323 3rd Street, Georgetown, PA 15043. Borough of Glasgow ...... Glasgow Borough President’s Office, 155 Liberty Avenue, Midland, PA 15059. Borough of Homewood ...... Homewood Borough Office, 102 Second Avenue, Beaver Falls, PA 15010. Borough of Hookstown ...... Borough Building, 262 Main Street, Hookstown, PA 15050. Borough of Industry ...... Borough Office, 1620B Midland Beaver Road, Industry, PA 15052. Borough of Koppel ...... Borough Office, 3437 3rd Avenue, Koppel, PA 16136. Borough of Midland ...... Borough Office, 936 Midland Avenue, Midland, PA 15059. Borough of Monaca ...... Borough Office, 928 Pennsylvania Avenue, Monaca, PA 15061. Borough of New Brighton ...... Borough Office, 610 3rd Avenue, New Brighton, PA 15066. Borough of New Galilee ...... Borough Community Hall, 201 Washington Avenue, New Galilee, PA 16141. Borough of Ohioville ...... Ohioville Borough Annex Building, 6268 Tuscarawas Road, Industry, PA 15052. Borough of Patterson Heights ...... Patterson Heights Borough Hall, 600 7th Avenue, Beaver Falls, PA 15010. Borough of Rochester ...... Borough Municipal Building, 350 Adams Street, Rochester, PA 15074. Borough of Shippingport ...... Municipal Building, 164 State Route 3016, Shippingport, PA 15077. Borough of South Heights ...... Borough Building, 4069 Jordan Street, South Heights, PA 15081. Borough of West Mayfield ...... West Mayfield Borough Building, 4609 West 8th Avenue, Beaver Falls, PA 15010. City of Aliquippa ...... City Hall, 581 Franklin Avenue, Aliquippa, PA 15001. City of Beaver Falls ...... City Hall, 715 15th Street, Beaver Falls, PA 15010. Township of Brighton ...... Brighton Township Municipal Building, 1300 Brighton Road, Beaver, PA 15009.

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Community Community map repository address

Township of Center ...... Center Township Municipal Building, 224 Center Grange Road, Ali- quippa, PA 15001. Township of Chippewa ...... Chippewa Township Municipal Building, 2811 Darlington Road, Beaver Falls, PA 15010. Township of Darlington ...... Township Municipal Building, 3590 Darlington Road, Darlington, PA 16115. Township of Daugherty ...... Daugherty Township Municipal Building, 2182 Mercer Road, New Brighton, PA 15066. Township of Franklin ...... Franklin Township Hall, 897 State Route 288, Fombell, PA 16123. Township of Greene ...... Greene Township Hall, 262 Pittsburgh Grade Road, Hookstown, PA 15050. Township of Hanover ...... Hanover Township Hall, 2731 State Route 18, Hookstown, PA 15050. Township of Harmony...... Harmony Township Municipal Building, 2501 Woodland Road, Ambridge, PA 15003. Township of Hopewell ...... Hopewell Township Municipal Building, 1700 Clark Boulevard, Ali- quippa, PA 15001. Township of Independence ...... Independence Township Municipal Building, 104 School Road, Ali- quippa, PA 15001. Township of Marion...... Marion Township Municipal Building, 485 Hartzell School Road, Fombell, PA 16123. Township of New Sewickley ...... New Sewickley Township Municipal Building, 233 Miller Road, Roch- ester, PA 15074. Township of North Sewickley ...... North Sewickley Township Municipal Building, 893 Mercer Road, Bea- ver Falls, PA 15010. Township of Patterson ...... Patterson Township Municipal Complex, 1600 19th Avenue, Beaver Falls, PA 15010. Township of Potter ...... Potter Township Municipal Building, 206 Mowry Road, Monaca, PA 15061. Township of Pulaski ...... Pulaski Township Municipal Building, 3401 Sunflower Road, New Brighton, PA 15066. Township of Raccoon ...... Raccoon Township Municipal Building, 1234 State Route 18, Aliquippa, PA 15001. Township of Rochester ...... Municipal Building, 1013 Elm Street, Rochester, PA 15074. Township of South Beaver ...... South Beaver Township Fire Hall, 773 State Route 168, Darlington, PA 16115. Township of Vanport ...... Municipal Building, 477 State Avenue, Vanport, PA 15009. Township of White ...... White Township Building, 2511 13th Avenue (Clayton Road), Beaver Falls, PA 15010.

II. Watershed-based studies:

LOWER LITTLE BLUE WATERSHED

Community Community map repository address

Jefferson County, Nebraska, and Incorporated Areas Docket No.: FEMA–B–1410

Village of Daykin ...... Village Office, 101 Whitehead Avenue, Daykin, NE 68338. Village of Diller ...... Community Center, 503 Commercial Street, Diller, NE 68342. Village of Endicott ...... Village Hall, 110 North Scribner Street, Endicott, NE 68350. City of Fairbury ...... City Hall, 612 D Street, Fairbury, NE 68352. Village of Harbine ...... Harbine Village Hall, 315 Barry Street, Jansen, NE 68377. Village of Jansen ...... Village Hall, 57315 715th Road, Jansen, NE 68377. Unincorporated Areas of Jefferson County ...... Planning and Zoning Department, 313 South K Street, Fairbury, NE 68352. Village of Plymouth ...... Village Hall, 313 East Main Street, Plymouth, NE 68424. Village of Reynolds ...... Village Hall, 125 Beech Street, Reynolds, NE 68429. Village of Steele City ...... Village Hall, 113 North Ida Street, Steele City, NE 68440.

[FR Doc. 2015–17663 Filed 7–17–15; 8:45 am] BILLING CODE 9110–12–P

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DEPARTMENT OF HOMELAND SUMMARY: The Federal Emergency www.regulations.gov, including any SECURITY Management Agency (FEMA) Technical personal information provided. Docket: Mapping Advisory Council (TMAC) will For docket access to read background Federal Emergency Management meet in person on August 4–5, 2015, in documents or comments received by the Agency Reston, VA. The meeting will be open TMAC, go to http://www.regulations.gov [Internal Agency Docket No. FEMA–4223– to the public. and search for the Docket ID FEMA– DR; Docket ID FEMA–2015–0002] DATES: The TMAC will meet on 2014–0022. Tuesday, August 4, 2015, from 8:00 A public comment period will be held Texas; Amendment No. 4 to Notice of a.m.–5:30 p.m., and Wednesday, August on August 4, 2015, from 4:30 p.m. to a Major Disaster Declaration 5, 2015, from 8:00 a.m.–5:00 p.m., 5:00 p.m. and again on August 5, 2015, Eastern Daylight Savings Time (EDT). from 3:30 to 4:00 p.m. Speakers are AGENCY: Federal Emergency requested to limit their comments to no Management Agency, DHS. Please note that the meeting will close early if the TMAC has completed its more than three minutes. The public ACTION: Notice. business. comment period will not exceed 30 minutes. Please note that the public SUMMARY: This notice amends the notice ADDRESSES: The meeting will be held in comment period may end before the of a major disaster declaration for the the auditorium of the United States time indicated, following the last call State of Texas (FEMA–4223–DR), dated Geological Survey (USGS) headquarters for comments. Contact the individual May 29, 2015, and related building located at 12201 Sunrise Valley listed below to register as a speaker by determinations. Drive Reston, VA 20192. Members of the close of business on Wednesday, July DATES: Effective Date: June 19, 2015. public who wish to attend the meeting 29, 2015. must register in advance by sending an FOR FURTHER INFORMATION CONTACT: FOR FURTHER INFORMATION CONTACT: email to FEMA–[email protected] Dean Webster, Office of Response and Mark Crowell, Designated Federal (attention Mark Crowell) by 11 p.m. Recovery, Federal Emergency Officer for the TMAC, FEMA, 1800 EDT on Thursday, July 30, 2015. Management Agency, 500 C Street SW., South Bell Street Arlington, VA 22202, Members of the public must check in at Washington, DC 20472, (202) 646–2833. telephone (202) 646–3432, and email the USGS Visitor’s entrance security SUPPLEMENTARY INFORMATION: Notice is [email protected]. The TMAC desk; photo identification is required. hereby given that the incident period for Web site is: http://www.fema.gov/ For information on facilities or this disaster is closed effective June 19, TMAC. services for individuals with disabilities 2015. or to request special assistance at the SUPPLEMENTARY INFORMATION: Notice of The following Catalog of Federal Domestic meeting, contact the person listed in FOR this meeting is given under the Federal Assistance Numbers (CFDA) are to be used FURTHER INFORMATION CONTACT below as Advisory Committee Act, 5 U.S.C. for reporting and drawing funds: 97.030, soon as possible. Appendix. Community Disaster Loans; 97.031, Cora To facilitate public participation, As required by the Biggert-Waters Brown Fund; 97.032, Crisis Counseling; members of the public are invited to Flood Insurance Reform Act of 2012, the 97.033, Disaster Legal Services; 97.034, TMAC makes recommendations to the Disaster Unemployment Assistance (DUA); provide written comments on the issues 97.046, Fire Management Assistance Grant; to be considered by the TMAC, as listed FEMA Administrator on: (1) How to 97.048, Disaster Housing Assistance to in the SUPPLEMENTARY INFORMATION improve, in a cost-effective manner, the Individuals and Households In Presidentially section below. Associated meeting (a) accuracy, general quality, ease of use, Declared Disaster Areas; 97.049, materials will be available at and distribution and dissemination of Presidentially Declared Disaster Assistance— www.fema.gov/TMAC for review by flood insurance rate maps and risk data; Disaster Housing Operations for Individuals Monday, July 27, 2015. Written and (b) performance metrics and and Households; 97.050, Presidentially comments to be considered by the milestones required to effectively and Declared Disaster Assistance to Individuals committee at the time of the meeting efficiently map flood risk areas in the and Households—Other Needs; 97.036, United States; (2) mapping standards Disaster Grants—Public Assistance must be submitted and received by (Presidentially Declared Disasters); 97.039, Wednesday, July 29, 2015, identified by and guidelines for (a) flood insurance Hazard Mitigation Grant. Docket ID FEMA–2014–0022, and rate maps, and (b) data accuracy, data submitted by one of the following quality, data currency, and data W. Craig Fugate, methods: eligibility; (3) how to maintain, on an Administrator, Federal Emergency • Federal eRulemaking Portal: http:// ongoing basis, flood insurance rate maps Management Agency. www.regulations.gov. Follow the and flood risk identification; (4) [FR Doc. 2015–17668 Filed 7–17–15; 8:45 am] instructions for submitting comments. procedures for delegating mapping BILLING CODE 9111–23–P • Email: Address the email TO: activities to State and local mapping [email protected] and CC: partners; and (5) (a) methods for [email protected]. Include improving interagency and DEPARTMENT OF HOMELAND the docket number in the subject line of intergovernmental coordination on SECURITY the message. Include name and contact flood mapping and flood risk determination, and (b) a funding Federal Emergency Management detail in the body of the email. • Mail: Regulatory Affairs Division, strategy to leverage and coordinate Agency Office of Chief Counsel, FEMA, 500 C budgets and expenditures across Federal [Docket ID FEMA–2014–0022] Street SW., Room 8NE, Washington, DC agencies. Furthermore, the TMAC is 20472–3100. required to submit an annual report to Technical Mapping Advisory Council Instructions: All submissions received the FEMA Administrator that contains: AGENCY: Federal Emergency must include the words ‘‘Federal (1) A description of the activities of the Management Agency, DHS. Emergency Management Agency’’ and Council; (2) an evaluation of the status the docket number for this action. and performance of flood insurance rate ACTION: Committee Management; Notice Comments received will be posted maps and mapping activities to revise of Federal Advisory Committee Meeting. without alteration at http:// and update Flood Insurance Rate Maps;

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and (3) a summary of recommendations DEPARTMENT OF THE INTERIOR have received your email message, made by the Council to the FEMA contact us directly at the telephone Administrator. Fish and Wildlife Service number listed above (see FOR FURTHER The TMAC must also develop [FWS–R4–ES–2015–N086; 40120–1112– INFORMATION CONTACT). Finally, you may recommendations on how to ensure that 0000–F2] hand-deliver comments to the Fish and Wildlife Service office listed above (see flood insurance rate maps incorporate Receipt of Applications for ADDRESSES). the best available climate science to Endangered Species Permits Before including your address, assess flood risks and ensure that FEMA telephone number, email address, or AGENCY: uses the best available methodology to Fish and Wildlife Service, other personal identifying information consider the impact of the rise in sea Interior. in your comments, you should be aware level and future development on flood ACTION: Notice. that your entire comment—including risk. The TMAC must collect these your personal identifying information— recommendations and present them to SUMMARY: We, the U.S. Fish and Wildlife Service, invite the public to may be made publicly available at any the FEMA Administrator in a future time. While you can ask us in your conditions risk assessment and comment on the following applications to conduct certain activities with comments to withhold your personal modeling report. endangered species. With some identifying information from public Further, in accordance with the exceptions, the Endangered Species Act review, we cannot guarantee that we Homeowner Flood Insurance (ESA) prohibits activities with listed will be able to do so. Affordability Act of 2014, the TMAC species unless a Federal permit is issued Permit Applications must develop a review report related to that allows such activities. The ESA flood mapping in support of the requires that we invite public comment Permit Application Number: TE National Flood Insurance Program before issuing these permits. 13844A–2 (NFIP). DATES: We must receive written data or Applicant: Anthony Miller, Morgan Agenda: On August 4, 2015, the comments on the applications at the Worldwide, Lexington, Kentucky. TMAC members will present and address given below by August 19, The applicant requests an amendment deliberate on draft narrative and 2015. of his current permit to add the state of recommendations concerning (1) the ADDRESSES: Documents and other Georgia for permitted activities with the flood hazard mapping process and information submitted with the gray bat (Myotis grisescens). Permitted product, and (2) future conditions applications are available for review, activities will continue to be take (enter methods and considerations that will be subject to the requirements of the hibernacula and maternity roost caves, incorporated into both the 2015 Annual Privacy Act and Freedom of Information mist-net, harp trap, band, radio-tag, Report and the Future Conditions Act, by any party who submits a written light-tag, wing punch, and salvage) for Report. A brief public comment period request for a copy of such documents to the purpose of carrying out presence/ absence surveys. will take place prior to the end of the the following office within 30 days of meeting. the date of publication of this notice: Permit Application Number: TE U.S. Fish and Wildlife Service, 1875 12399A–3 On August 5, 2015, the TMAC Century Boulevard, Suite 200, Atlanta, members will continue to deliberate on GA 30345 (Attn: James Gruhala, Permit Applicant: Ronald Forman, Audubon draft narratives and recommendations Coordinator). Nature Institute, New Orleans, Louisiana. concerning (1) the flood hazard FOR FURTHER INFORMATION CONTACT: mapping process and product, and (2) James Gruhala, 10(a)(1)(A) Permit The applicant requests renewal of his future conditions methods and Coordinator, telephone 404–679–7097; current permit to take (rehabilitate, considerations that will be incorporated facsimile 404–679–7081. mark, transport, release, and euthanize) in the two reports. In addition, the SUPPLEMENTARY INFORMATION: The Kemp’s ridley (Lepidochelys kempii), TMAC members will identify and public is invited to comment on the hawksbill (Eretmochelys imbricata), coordinate next steps of the TMAC following applications for permits to leatherback (Dermochelys coriacea), report development. A brief public conduct certain activities with green (Chelonia mydas), loggerhead comment period will take place during endangered and threatened species (Caretta caretta), and olive ridley the meeting. The full agenda and related under section 10(a)(1)(A) of the (Lepidochelys olivacea) sea turtles and briefing materials will be posted for Endangered Species Act of 1973, as amendment to authorize the attachment review by July 27, 2015 at http:// amended (16 U.S.C. 1531 et seq.), and of satellite tags to turtles prior to release, www.fema.gov/TMAC. our regulations in the Code of Federal for purposes of veterinary treatment and monitoring of movements and survival Dated: July 14, 2015. Regulations (CFR) at 50 CFR 17. This notice is provided under section 10(c) of of released turtles in the state of W. Craig Fugate, the Act. Louisiana and elsewhere as directed by Administrator, Federal Emergency If you wish to comment, you may the U.S Fish and Wildlife Service. Management Agency. submit comments by any one of the [FR Doc. 2015–17706 Filed 7–17–15; 8:45 am] Permit Application Number: TE following methods. You may mail 66445B–0 BILLING CODE 9110–12–P comments to the Fish and Wildlife Service’s Regional Office (see Applicant: Angelina Fowler, Nashville, ADDRESSES section) or send them via Tennessee. electronic mail (email) to permitsR4ES@ The applicant requests a permit to fws.gov. Please include your name and take (capture, identify, release) return address in your email message. If Nashville crayfish (Orconectes shoupi) you do not receive a confirmation from and thirteen species of fish for the the Fish and Wildlife Service that we purpose of conducting presence/absence

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surveys in Tennessee, Alabama, grisescens), and northern long-eared DATES: Written comments on the permit Kentucky, and Georgia. bats (Myotis septentrionalis) in application, proposed programmatic Alabama, Arkansas, Georgia, Illinois, CCAA, and draft NEPA compliance Permit Application Number: TE Indiana, Kentucky, Maryland, documentation must be received on or 66480B–0 Mississippi, Missouri, North Carolina, before August 19, 2015. Applicant: Thomas Gilbert, Greenwood, Ohio, Pennsylvania, South Carolina, ADDRESSES: Obtaining Documents: Arkansas. Tennessee, Virginia, and West Virginia, Persons wishing to review the The applicant requests a permit to and take (capture, identify, release, and application, the proposed CCAA, the take (live-trap and release) American collect relict shells) 26 species of draft NEPA compliance documentation, burying beetles (Nicrophorus freshwater mussels in Kentucky for the or other related documents may obtain americanus) for the purpose of purpose of conducting presence/absence copies by written or telephone request conducting presence/absence surveys in surveys. to Jeri Krueger, by mail at U.S. Fish and Arkansas and Oklahoma. Dated: June 23, 2015. Wildlife Service, Reno Fish and Wildlife Permit Application Number: TE Leopoldo Miranda, Office, 1340 Financial Boulevard, Suite 017853–3 Assistant Regional Director—Ecological 234, Reno, NV 89502, or by phone at Services, Southeast Region. 775–861–6300. Copies of these Applicant: Lynne Byrd, Mote Marine [FR Doc. 2015–17070 Filed 7–17–15; 8:45 am] documents may also be obtained on the Laboratory, Sarasota, Florida. Internet at http://www.fws.gov/nevada/ BILLING CODE 4310–55–P The applicant requests renewal of his protected_species/amphibians/species/ current permit to take (euthanize) relict_leopard_frog.html. Kemp’s ridley (Lepidochelys kempii), DEPARTMENT OF THE INTERIOR Submitting Comments: Please address hawksbill (Eretmochelys imbricata), written comments to Michael J. Senn, leatherback (Dermochelys coriacea), Fish and Wildlife Service Field Supervisor, U.S. Fish and Wildlife green (Chelonia mydas), loggerhead Service, Southern Nevada Fish and (Caretta caretta), sea turtles for the [FWS–R8–ES–2015–N123; FF08ENVD00– Wildlife Office, 4701 North Torrey Pines purpose of veterinary treatment in the FXES11120888ENR0–156] Drive, Las Vegas, NV 89130. You may state of Florida and elsewhere as also send comments by facsimile to Endangered and Threatened Wildlife directed by the U.S Fish and Wildlife 702–515–5231. Please note that your and Plants; Nevada Department of Service. information request or comment is in Wildlife; Application for Enhancement reference to the Programmatic CCAA for Permit Application Number: TE of Survival Permit; Proposed the Relict Leopard Frog, Clark County, 68616B–0 Programmatic Candidate Conservation Nevada. Agreement With Assurances for the Applicant: Carla Atkinson, University of FOR FURTHER INFORMATION CONTACT: Jeri Alabama, Tuscaloosa, Alabama. Relict Leopard Frog; Clark County, Nevada Krueger, Reno Fish and Wildlife Office, The applicant requests a permit to at the address or telephone number take (capture, identify, release) 33 AGENCY: Fish and Wildlife Service, listed above under ADDRESSES. species of mussels for the purpose of Interior. SUPPLEMENTARY INFORMATION: conducting presence absence surveys in ACTION: Receipt of application; request Document Availability Alabama, Georgia, and Tennessee. for comment. Permit Application Number: TE You may obtain copies of the permit SUMMARY: 121059–2 We, the U.S. Fish and application, proposed CCAA, draft Wildlife Service (Service) announce NEPA compliance documentation, and Applicant: Peggy Measel, Round receipt from the Nevada Department of other related documents from the Mountain Biological & Environmental Wildlife (NDOW) of an application for individual listed under FOR FURTHER Studies Inc., Nicholasville, Kentucky. an enhancement of survival permit INFORMATION CONTACT. Copies of these The applicant requests an amendment (permit) under the Endangered Species documents are also available for public of her current permit to add the states Act of 1973, as amended (ESA). The inspection, by appointment, during of Indiana, Illinois, Virginia, and West requested permit would authorize take regular business hours (8 a.m. to 4:30 Virginia for already permitted activities of the relict leopard frog (RLF) resulting p.m.), at the Southern Nevada Fish and with Indiana (Myotis sodalis) and gray from certain land use and conservation Wildlife Office, 4701 North Torrey Pines (Myotis grisescen) bats. Permitted activities, should the species be listed as Drive, Las Vegas, NV 89130. activities will continue to be take (enter endangered or threatened in the future. hibernacula and maternity roost caves, The permit application includes a Background Information salvage bead bats, collect hair samples, proposed programmatic candidate Enhancement of survival permits mist-net, harp trap, band, radio-tag, conservation agreement with assurances issued for CCAAs encourage non- light-tag, wing punch, and salvage) for (CCAA) between NDOW and the Federal landowners to implement the purpose of carrying out presence/ Service. The requested term of the conservation measures for species that absence surveys. proposed CCAA and permit is 30 years. are, or are likely to become, candidates In accordance with the requirements of for Federal listing as endangered or Permit Application Number: TE the National Environmental Policy Act threatened by assuring landowners they 64232B–0 (NEPA), we have prepared a draft low- will not be subjected to increased Applicant: Joshua R. Young, Lexington, effect screening form supporting our property use restrictions if the covered Kentucky. determination that the proposed action species becomes listed in the future. The applicant requests a permit to qualifies as a categorical exclusion Application requirements and issuance take (capture, identify, tag, and release) under NEPA. We are accepting criteria for enhancement of survival Virginia big-eared (Corynorhinus comments on the permit application, permits issued for CCAAs are in the (=plecotus) townsendii virginianus), proposed CCAA, and draft NEPA Code of Federal Regulations (CFR) at 50 Indiana (Myotis sodalis), gray (Myotis compliance documentation. CFR 17.22(d) and 17.32(d). The policy

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for CCAAs was published in the Federal RLF, identified as the Potential Authority Register on June 17, 1999 (64 FR 32726). Management Zone in the CAS and We provide this notice under section CCAA. The proposed CCAA would Proposed Project 10(c) of the Act (16 U.S.C. 1531 et seq.) include properties that have existing, and its implementing regulations (50 The proposed RLF CCAA is a historic, or potentially suitable habitat CFR 17.22 and 17.32), and the National programmatic agreement between the for RLF. Such habitats may include Environmental Policy Act (42 U.S.C. Service and NDOW to further the reliable and protected water supplies 4371 et seq.) and its implementing conservation of the RLF on non-Federal and water quality, limited or regulations (40 CFR 1506.6). lands or on lands under the controllable public access, accessibility Dated: July 14, 2015. management authority of a non-Federal for management actions and RLF Michael J. Senn, entity. A RLF Conservation Agreement translocations or removal, permanent and Strategy (CAS) that directs the ponds and/or wetland areas, natural Field Supervisor, Southern Nevada Fish and Wildlife Office, Las Vegas, Nevada. implementation of conservation actions springs, spring outflows or reaches of on Federal land was completed and springbrooks and streams that represent [FR Doc. 2015–17705 Filed 7–17–15; 8:45 am] approved in 2005, and is being suitable habitat for any or all life stages BILLING CODE 4310–55–P implemented by the RLF Conservation of RLF. An enrolled property may Team, which is comprised of include all or some combination of representatives from the signatory DEPARTMENT OF THE INTERIOR suitable habitat types, or the potential to agencies of the CAS. One of the primary create those habitats. goals of the CAS is to establish U.S. Geological Survey additional populations of RLF within its As required by NEPA, we evaluated National Earthquake Prediction historic range to secure species impacts to the human environment that Evaluation Council persistence into the future. However, would result from issuance of the the CAS does not provide a mechanism requested permit, and we do not foresee AGENCY: U.S. Geological Survey, to establish populations on non-Federal any significant effects. Therefore, we are Interior. lands while providing regulatory proposing to categorically exclude this ACTION: Notice of meeting. assurances to the landowner in the action from further analysis under event the species becomes listed in the NEPA. Entering into a cooperative SUMMARY: Pursuant to Public Law 106– future. The proposed programmatic agreement is strictly a voluntary action 503, the National Earthquake Prediction CCAA would provide these assurances for landowners, and the activities to be Evaluation Council (NEPEC) will hold to non-Federal landowners, thus covered under the permit are generally its next meeting at the Southern promoting opportunities to implement activities already occurring on these Methodist University in Dallas, Texas. conservation actions and increase RLF properties. The Committee is comprised of members from academia, industry, and distribution on non-Federal land. We will evaluate the permit Under the proposed RLF CCAA, State government. The Committee shall application, associated documents, and NDOW would establish a program in advise the Director of the U.S. comments we receive to determine which individual landowners would Geological Survey (USGS) on matters whether the permit application meets enroll their property. To enroll in the relating to the USGS’s participation in the requirements of the ESA, NEPA, and program, a landowner would enter into the National Earthquake Hazards implementing regulations. If we a cooperative agreement (CA) with Reduction Program. determine that all requirements are met, NDOW that contains a site-specific At the meeting, the Council will we will sign the proposed CCAA and management plan for the enrolled lands. receive briefings and updates on: The NDOW would then issue the landowner issue a permit under section 10(a)(1)(A) USGS’s strategic plan for operational a Certificate of Inclusion that would of the ESA to NDOW for take of RLF. earthquake forecasting and outcomes of authorize a certain level of take of RLF We will not make our final decision a user-needs workshop on that subject under NDOW’s permit as described in until after the end of the 30-day public held in March 2015; on USGS work to the CCAA and CA if the species comment period, and we will fully calculate the probability of future becomes listed under the ESA in the consider all comments we receive earthquakes in areas of the U.S. subject future. The CA would specify during the public comment period. to induced seismicity; on the estimation conservation measures to address Public Availability of Comments of aftershock probabilities and on new known threats to the RLF which may modeled estimates of earthquake include, but are not limited to, All comments we receive become part likelihood along the Wasatch fault zone translocation of RLF, fencing, deepening of the public record. Requests for copies by a technical working group; and on a tank or pool, removal of non-native of comments will be handled in development of a plan for rapid aquatic predators, maintenance of accordance with the Freedom of communication of earthquake suitable habitat conditions, Information Act, NEPA, and Service and information in the Cascadia region. The enhancement of dispersal corridors, Department of Interior policies and NEPEC will review USGS procedures vegetation enhancement, and public procedures. Before including your for calculating and communicating education. The CA would also specify address, phone number, email address, aftershock probabilities following large measures to minimize the incidental or other personal identifying earthquakes in areas outside of take of RLF that might occur as a result information in your comment, you California and the application of these of implementing the conservation should be aware that your entire procedures following the M7.8 Gorkha, measures or conducting other land use comment—including your personal Nepal earthquake of April 2015. The activities. identifying information—may be made council will also finalize a statement for NDOW seeks to enroll lands in Clark publicly available at any time. While public release summarizing the proper County, Nevada, that are associated you can ask us to withhold your procedures for posing and testing with the Virgin, Muddy, and Colorado personal identifying information from earthquake predictions and forecasts. River drainages within or in close public review, we cannot guarantee we Meetings of the National Earthquake proximity to the historic range of the will be able to do so. Prediction Evaluation Council are open

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to the public. A draft meeting agenda is Meetings of the Scientific Earthquake Commission, 500 E Street SW., Room available upon request from the Studies Advisory Committee are open to 112, Washington, DC 20436, telephone Executive Secretary on request (contact the public. (202) 205–2000. Hearing impaired information below). In order to ensure DATES: January 28–29, 2015, individuals are advised that information sufficient seating and hand-outs, it is commencing at 9 a.m. on the first day on this matter can be obtained by requested that visitors pre-register by and adjourning at 5 p.m. on January 29, contacting the Commission’s TDD September 13. Members of the public 2015. terminal on (202) 205–1810. Persons wishing to make a statement to the FOR FURTHER INFORMATION CONTACT: Dr. with mobility impairments who will Council should provide notice of that William Leith, U.S. Geological Survey, need special assistance in gaining access intention by August 26 so that time may MS 905, 12201 Sunrise Valley Drive, to the Commission should contact the be allotted in the agenda. A meeting Reston, Virginia 20192, (703) 648–6786, Office of the Secretary at (202) 205– summary will be posted by September [email protected]. 2000. General information concerning 30 to the committee Web site: http:// the Commission may also be obtained earthquake.usgs.gov/aboutus/nepec/. William Leith, by accessing its internet server at DATES: September 2, 2015, commencing Senior Science Advisor for Earthquake and http://www.usitc.gov. The public record at 2:00 p.m. in Room 190 in the Crow Geologic Hazards. for this investigation may be viewed on Building on the SMU campus and [FR Doc. 2015–17640 Filed 7–17–15; 8:45 am] the Commission’s electronic docket adjourning at 6:00 p.m. September 3, BILLING CODE 4310–Y7–P (EDIS) at http://edis.usitc.gov. 2015, commencing at 9:00 a.m. in Room FOR FURTHER INFORMATION CONTACT: The 220 (Earnst & Young Gallery) in the Office of Unfair Import Investigations, Fincher Building on campus and INTERNATIONAL TRADE U.S. International Trade Commission, adjourning at 5:00 p.m. COMMISSION telephone (202) 205–2560. Contact: Dr. Michael Blanpied, U.S. [Investigation No. 337–TA–962] Authority: The authority for institution of Geological Survey, MS 905, 12201 this investigation is contained in section 337 Sunrise Valley Drive, Reston, Virginia Certain Resealable Packages With of the Tariff Act of 1930, as amended, and 20192, (703) 648–6696, mblanpied@ Slider Devices; Institution of in section 210.10 of the Commission’s Rules usgs.gov. of Practice and Procedure, 19 CFR 210.10 Investigation (2015). Michael L. Blanpied, AGENCY: U.S. International Trade Associate Coordinator, USGS Earthquake Scope of Investigation: Having Commission. Hazards Program. considered the complaint, the U.S. [FR Doc. 2015–17641 Filed 7–17–15; 8:45 am] ACTION: Notice. International Trade Commission, on BILLING CODE P July 14, 2015, ordered that— SUMMARY: Notice is hereby given that a (1) Pursuant to subsection (b) of complaint was filed with the U.S. section 337 of the Tariff Act of 1930, as International Trade Commission on June DEPARTMENT OF THE INTERIOR amended, an investigation be instituted 17, 2015, under section 337 of the Tariff to determine whether there is a Act of 1930, as amended, 19 U.S.C. Geological Survey violation of subsection (a)(1)(B) of 1337, on behalf of Reynolds Presto section 337 in the importation into the Scientific Earthquake Studies Advisory Products Inc. of Appleton, Wisconsin. A United States, the sale for importation, Committee Meeting supplement to the complaint was filed or the sale within the United States after on July 8, 2015. The complaint alleges AGENCY: U.S. Geological Survey. importation of certain resealable violations of section 337 based upon the packages with slider devices by reason ACTION: Notice of meeting. importation into the United States, the of infringement of one or more of claim sale for importation, and the sale within SUMMARY: Pursuant to Public Law 106– 39 of the ’421 patent; claim 1 of the ’002 the United States after importation of 503, the Scientific Earthquake Studies patent; and claim 1 of the ’443 patent, certain resealable packages with slider Advisory Committee (SESAC) will hold and whether an industry in the United devices by reason of infringement of its next meeting in the Southern States exists as required by subsection certain claims of U.S. Patent California Earthquake Center (SCEC) (a)(2) of section 337; Boardroom at the University of Reexamination Certificate No. 6,427,421 (2) For the purpose of the Southern California in Los Angeles, C1 (‘‘the ’421 patent’’); U.S. Patent No. investigation so instituted, the following California. The Committee is comprised 6,524,002 (‘‘the ’002 patent’’); and U.S. are hereby named as parties upon which of members from academia, industry, Patent No. 7,311,443 (‘‘the ’443 patent’’). this notice of investigation shall be and State government. The Committee The complaint further alleges that an served: shall advise the Director of the U.S. industry in the United States exists as (a) The complainant is: Reynolds Geological Survey (USGS) on matters required by subsection (a)(2) of section Presto Products Inc., 670 N. Perkins relating to the USGS’s participation in 337. Street, Appleton, WI 54912. the National Earthquake Hazards The complainant requests that the (b) The respondents are the following Reduction Program. Commission institute an investigation entities alleged to be in violation of The Committee will receive reports on and, after the investigation, issue a section 337, and are the parties upon the status of activities of the Program general exclusion order, or in the which the complaint is to be served: and progress toward Program goals and alternative, a limited exclusion order, Inteplast Group, Ltd., 9 Peach Tree Hill objectives. The Committee will assess and cease and desist orders. Road, Livingston, NJ 07039. this information and provide guidance ADDRESSES: The complaint, except for Minigrip, LLC, 161 Kimball Bridge on the future undertakings and direction any confidential information contained Road, Alpharetta, GA 30009. of the Earthquake Hazards Program. therein, is available for inspection (c) The Office of Unfair Import Focus topics for this meeting include a during official business hours (8:45 a.m. Investigations, U.S. International Trade program review and strategic planning to 5:15 p.m.) in the Office of the Commission, 500 E Street SW., Suite for 2016–2018. Secretary, U.S. International Trade 401, Washington, DC 20436; and

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(3) For the investigation so instituted, to protect air quality at power plants in U.S. DOJ–ENRD, P.O. Box 7611, the Chief Administrative Law Judge, Iowa. The complaint seeks injunctive Washington, DC 20044–7611. U.S. International Trade Commission, relief and civil penalties for violations Please enclose a check or money order shall designate the presiding of the Clean Air Act’s Prevention of for $ 29.50 (25 cents per page Administrative Law Judge. Significant Deterioration (‘‘PSD’’) reproduction cost) payable to the United Responses to the complaint and the provisions, 42 U.S.C. 7470–92, and States Treasury. notice of investigation must be various Clean Air Act implementing Maureen Katz, submitted by the named respondents in regulations. Specifically, the complaint Assistant Section Chief, Environmental accordance with section 210.13 of the alleges that Defendant failed to obtain Enforcement Section, Environment and Commission’s Rules of Practice and appropriate permits and failed to install Natural Resources Division. and operate required pollution control Procedure, 19 CFR 210.13. Pursuant to [FR Doc. 2015–17711 Filed 7–17–15; 8:45 am] 19 CFR 201.16(e) and 210.13(a), such devices to reduce emissions of sulfur BILLING CODE 4410–15–P responses will be considered by the dioxide (‘‘SO2’’) and/or nitrogen oxides Commission if received not later than 20 (‘‘NOX’’) at the company’s Ottumwa and days after the date of service by the Lansing plants. DEPARTMENT OF JUSTICE Commission of the complaint and the The proposed Consent Decree would notice of investigation. Extensions of resolve violations for certain provisions [OMB Number 1125—NEW] of the Act at the Ottumwa and Lansing time for submitting responses to the Agency Information Collection complaint and the notice of plants as well as Defendant’s five other coal-fired power plants in Iowa: The Activities; Proposed eCollection; investigation will not be granted unless eComments Requested; Unfair good cause therefor is shown. Burlington, Dubuque, M.L. Kapp, Prairie Creek, and Sutherland plants. The Immigration-Related Employment Failure of a respondent to file a timely Practices Complaint Form response to each allegation in the proposed Consent Decree would require complaint and in this notice may be the Defendant to reduce harmful SO2, AGENCY: Executive Office for deemed to constitute a waiver of the NOX, and particulate matter emissions Immigration Review, Department of right to appear and contest the from these seven plants through the Justice. allegations of the complaint and this installation and operation of pollution ACTION: 30-Day notice. notice, and to authorize the controls and conversions to natural gas administrative law judge and the or retirements. The Defendant will also SUMMARY: The Department of Justice Commission, without further notice to spend $6,000,000 to fund environmental (DOJ), Executive Office for Immigration the respondent, to find the facts to be as mitigation projects that will further Review, will be submitting the alleged in the complaint and this notice reduce emissions and benefit following information collection request and to enter an initial determination communities adversely affected by the to the Office of Management and Budget and a final determination containing pollution from the plants, and pay a (OMB) for review and approval in such findings, and may result in the civil penalty of $1,100,000. accordance with the Paperwork issuance of an exclusion order or a cease The publication of this notice opens Reduction Act of 1995. This proposed and desist order or both directed against a period for public comment on the information collection was previously proposed Consent Decree. Comments the respondent. published in the Federal Register at 80 should be addressed to the Assistant FR 29340, on May 21, 2015, allowing for By order of the Commission. Attorney General, Environment and a 60 day comment period. Issued: July 15, 2015. Natural Resources Division, and should DATES: Comments are encouraged and Jennifer Rohrbach, refer to United States, et al. v. Interstate will be accepted for an additional 30 Supervisory Attorney. Power and Light Company, Civil Case days until August 19, 2015. No. 1:15–cv&00061 (N.D. Iowa), D.J. Ref. [FR Doc. 2015–17716 Filed 7–17–15; 8:45 am] FOR FURTHER INFORMATION CONTACT: If No. 90–5–2–1–10594. All comments BILLING CODE 7020–02–P you have additional comments must be submitted no later than thirty especially on the estimated public (30) days after the publication date of burden or associated response time, this notice. Comments may be DEPARTMENT OF JUSTICE suggestions, or need a copy of the submitted either by email or by mail: proposed information collection Notice of Lodging of Proposed instrument with instructions or Consent Decree Under the Clean Air To submit comments: Send them to: additional information, please contact Act Charles Adkins-Blanch, Acting General On July 15, 2015, the Department of By email ...... pubcomment- Counsel, Executive Office for [email protected]. Immigration Review, U.S. Department of Justice lodged a proposed Consent By mail ...... Assistant Attorney General, Decree with the United States District Justice, Suite 2600, 5107 Leesburg Pike, U.S. DOJ—ENRD, P.O. Falls Church, Virginia 20530; telephone: Court for the Northern District of Iowa Box 7611, Washington, DC in the lawsuit entitled United States, et 20044–7611. (703) 305–0470. Written comments and/ al. v. Interstate Power and Light or suggestions can also be directed to Company, Civil Case No. 1:15–cv–00061 During the public comment period, the Office of Management and Budget, (N.D. Iowa). The State of Iowa, Linn the proposed Consent Decree may be Office of Information and Regulatory County Iowa, and the Sierra Club are co- examined and downloaded at this Affairs, Attention Department of Justice Justice Department Web site: http:// Desk Officer, Washington, DC 20530 or plaintiffs in the case. _ In this civil enforcement action under www.justice.gov/enrd/consent-decrees. sent to OIRA submissions@ the federal Clean Air Act (‘‘Act’’), the We will provide a paper copy of the omb.eop.gov. United States alleges that Interstate proposed Consent Decree upon written SUPPLEMENTARY INFORMATION: Written Power and Light Company request and payment of reproduction comments and suggestions from the (‘‘Defendant’’), failed to comply with costs. Please mail your request and public and affected agencies concerning certain requirements of the Act intended payment to: Consent Decree Library, the proposed collection of information

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are encouraged. Your comments should Department of Justice, Office of Special Background: The TAA program address one or more of the following Counsel for Immigration-Related Unfair operates under the Trade Act of 1974, as four points: Employment Practices (OSC). The OSC amended, to provide assistance to —Evaluate whether the proposed then has 120 days to determine whether domestic workers adversely affected in collection of information is necessary to file a complaint with OCAHO on their employment by certain types of for the proper performance of the behalf of the individual charging party. foreign trade. Workers become eligible functions of the agency, including If the OSC chooses not to file a for program benefits only if the worker whether the information will have complaint, the individual may then file group is certified under the Act as practical utility; his or her own complaint directly with eligible to apply for adjustment —Evaluate the accuracy of the agency’s OCAHO. This information collection assistance. From time to time the agency estimate of the burden of the may be used by an individual to file his issues an Order designating or proposed collection of information, or her own complaint with OCAHO. redesignating officials of the agency including the validity of the The Form EOIR–58 will elicit, in a authorized to act as Certifying Officers, methodology and assumptions used; uniform manner, all of the required responsible for reviewing and signing —Enhance the quality, utility, and information for OCAHO to assign a adjustment assistance determinations. clarity of the information to be section 274B complaint to an This also is done when current collected; and/or Administrative Law Judge for Certifying Officials retire or leave and/ —Minimize the burden of the collection adjudication. or when there is a need to designate of information on those who are to 5. An estimate of the total number of new Certifying Officials. Employment respond, including through the use of respondents and the amount of time and Training Order No. 1–15 was issued appropriate automated, electronic, estimated for an average respondent to to revise the listing of officials mechanical, or other technological respond: It is estimated that 22 designated as Certifying Officers, collection techniques or other forms respondents will complete the form superseding Employment and Training of information technology, e.g., annually; each response will be Order No. 1–11 (76 FR 2720, January 14, permitting electronic submission of completed in approximately 30 minutes. 2011). The Employment and Training responses. 6. An estimate of the total public Order No. 1–XX is published below. Overview of This Information burden (in hours) associated with the FOR FURTHER INFORMATION CONTACT: Collection collection: The estimated public burden Norris T. Tyler III, 202–693–3651. associated with this collection is 11 SUPPLEMENTARY INFORMATION: 1. Type of Information Collection: hours. It is estimated that 22 forms will New Voluntary Collection. be received, taking 30 minutes to Employment and Training Order No. 1– 2. The Title of the Form/Collection: complete. 15 Unfair Immigration-Related If additional information is required TO: National and Regional Offices Employment Practices Complaint Form. contact: Jerri Murray, Department FROM: Portia WU, Assistant Secretary 3. The agency form number, if any, Clearance Officer, United States for Employment and Training and the applicable component of the Department of Justice, Justice SUBJECT: Trade Adjustment Assistance Department sponsoring the collection: Management Division, Policy and Program (Trade Act of 1974)— Form EOIR–58. The applicable Planning Staff, Two Constitution Designation of Certifying Officers component within the Department of Square, 145 N Street NE., 3E.405B, 1. Purpose. To designate Certifying Justice is the Office of the Chief Washington, DC 20530. Officers to carry out functions under the Administrative Hearing Officer Dated: July 15, 2015. Trade Adjustment Assistance (TAA) (OCAHO), Executive Office for program under chapter 2 of title II of the Jerri Murray, Immigration Review. Trade Act of 1974, as amended (19 4. Affected public who will be asked Department Clearance Officer for PRA, U.S. U.S.C. 2271 et seq.), and the Department of Justice. or required to respond, as well as a brief implementing regulations at 29 CFR part abstract: Primary: Individuals who wish [FR Doc. 2015–17697 Filed 7–17–15; 8:45 am] 90. to file a complaint alleging unfair BILLING CODE 4410–30–P 2. Directive Affected. Employment immigration-related employment and Training Order No. 1–11 (76 FR practices under section 274B of the 2720, January 14, 2011), which Immigration and Nationality Act (INA). DEPARTMENT OF LABOR designated Certifying Officers, is Other: None. Abstract: Section 274B of cancelled and superseded. the INA prohibits: employment Employment and Training 3. Background. Regulations at 29 CFR discrimination on the basis of Administration part 90 vest persons designated as citizenship status or national origin; Certifying Officers with the authority Trade Adjustment Assistance retaliation or intimidation by an and responsibility to make Program; Designation of Certifying employer against an individual seeking determinations and redeterminations Officers to exercise his or her rights under this and to issue certifications of eligibility section; and ‘‘document abuse’’ or over- AGENCY: Employment and Training of groups of workers to apply for documentation by the employer, which Administration, Labor. adjustment assistance under the TAA occurs when the employer asks an ACTION: Notice. program. applicant or employee for more or 4. Designation of Officials. By virtue different documents than required for SUMMARY: This notice is to designate of my authority under Secretary’s Order employment eligibility verification Certifying Officers to carry out functions No. 6–2010, October 20, 2010 (75 FR under INA section 274A, with the intent under the Trade Adjustment Assistance 66267, October 27, 2010), I designate or of discriminating against the employee (TAA) program under chapter 2 of title redesignate as Certifying Officers for the in violation of section 274B. Individuals II of the Trade Act of 1974, as amended TAA program: who believe that they have suffered (19 U.S.C. 2271 et seq.), and the a. Jessica R. Webster, Program discrimination in violation of section implementing regulations at 29 CFR part Analyst, Office of Trade Adjustment 274B may file a charge with the 90. Assistance

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b. Jacquelyn R. Mendelsohn, Program DATES: Written comments on the the proposed information collection Analyst, Office of Trade Adjustment proposal to amend the information must be received on or before August Assistance collection request 1245–0003, published 19, 2015. An extension of this duration c. Hope D. Kinglock, Program Analyst, on May 20, 2015 (80 FR 29096), must be is appropriate, because it will afford Office of Trade Adjustment Assistance submitted to the office listed in the parties a meaningful opportunity to d. DelMin A. Chen, Program Analyst, addresses section below on or before submit comments on the proposal Office of Trade Adjustment Assistance August 19, 2015. without unduly delaying final action on e. Norris T. Tyler III, Director, Office ADDRESSES: Andrew R. Davis, Chief of the proposed regulation. of Trade Adjustment Assistance the Division of Interpretations and Dated: July 15, 2015. The foregoing officials are delegated Standards, Office of Labor-Management Andrew R. Davis, authority and assigned responsibility, Standards, U.S. Department of Labor, Chief, Division of Interpretations and subject to the general direction and 200 Constitution Avenue NW., Room N– Standards, Office of Labor-Management control of the Assistant Secretary and 5609, Washington, DC 20210, olms- Standards. Deputy Assistant Secretaries of the [email protected], (202) 693–0123 (this is [FR Doc. 2015–17731 Filed 7–17–15; 8:45 am] Employment and Training not a toll-free number), (800) 877–8339 BILLING CODE 4510–86–P Administration, and the Administrator (TTY/TDD). of the Office of Trade Adjustment Please use only one method of Assistance or the successor office, to transmission (mail or submission via NATIONAL FOUNDATION ON THE carry out the duties and functions of www.regulations.gov using RIN: 1245– ARTS AND THE HUMANITIES Certifying Officers under 29 CFR part 90 AA06) to submit comments or to request and any succeeding regulations. a copy of this information collection National Endowment for the Arts 5. Effective Date. This order is and its supporting documentation; effective on date of issuance. including a description of the likely Arts Advisory Panel Meetings respondents, proposed frequency of This order rescinds ETO 1–11. AGENCY: National Endowment for the This Employment and Training Order response, and estimated total burden. You may also request a copy of this Arts, National Foundation on the Arts No. 1–15 was signed by Portia Wu on and Humanities. 7/7/15. information collection and its supporting documentation by sending ACTION: Notice of meetings. Dated: Signed the 7th day of July 2015. an email to [email protected]. SUMMARY: Pursuant to the Federal Portia Wu, SUPPLEMENTARY INFORMATION: In the Assistant Secretary, Employment and Advisory Committee Act, as amended, Federal Register of May 20, 2015 (80 FR notice is hereby given that three Training Administration. 29096), the Department sought public [FR Doc. 2015–17721 Filed 7–17–15; 8:45 am] meetings of the Arts Advisory Panel to comments on the proposal to amend the National Council on the Arts will be BILLING CODE 4510–FN–P Labor Organization and Auxiliary held by teleconference. Reports information collections DATES: All meetings are Eastern time approved under OMB Control Number and ending times are approximate: DEPARTMENT OF LABOR 1245–0003, specifically the Form LM–3 and LM–4 instructions, to require Literature (review of applications): This Office of Labor-Management meeting will be closed. Standards mandatory electronic filing of these reports, as well as modify the Form LM– Date and time: August 4, 2015; 3 p.m. 2 hardship exemption process to to 5 p.m. Agency Information Collection Literature (review of applications): This Activities; Information Collection correspond with that proposed for the Form LM–3 and LM–4 reports, which meeting will be closed. Request; Labor Organization and Date and time: August 5, 2015; 3 p.m. Auxiliary Reports Comment Period would only permit temporary hardship exemption submissions, not continuing. to 5 p.m. Extension Design (review of applications): This As stated in the notice, the Department meeting will be closed. AGENCY: Office of Labor-Management believes that reasonable changes must Date and time: August 24, 2015; 3 p.m. Standards, Department of Labor. be made to the means by which the to 5 p.m. ACTION: Notice. forms required under the Labor- Management Reporting and Disclosure ADDRESSES: National Endowment for the SUMMARY: This document extends the Act (LMRDA) Title II are filed. The most Arts, Constitution Center, 400 7th St. period for comments on the proposal, efficient way to provide meaningful SW., Washington, DC 20506. published on May 20, 2015 (80 FR access to this information by interested FOR FURTHER INFORMATION CONTACT: 29096), to amend the information members of the public is to require that Further information with reference to collection request 1245–0003, the reports filed by small and medium- these meetings can be obtained from Ms. particularly the Form LM–2, LM–3, and sized labor organizations be filed in Kathy Plowitz-Worden, Office of LM–4 Labor Organization Annual electronic form. This change will benefit Guidelines & Panel Operations, National Report instructions, to require filers of the filers, union members, and the Endowment for the Arts, Washington, such reports to submit the reports public, as well as the Department. DC 20506; [email protected], or call electronically, and to modify the Interested persons were invited to 202/682–5691. hardship exemption process for Form submit comments on or before July 20, SUPPLEMENTARY INFORMATION: The LM–2 filers. The comment period, 2015, 60 days after the publication of closed portions of meetings are for the which was to expire on July 20, 2015, the original notice. A public commenter purpose of Panel review, discussion, is extended to August 19, 2015. A copy has requested a 30-day extension of time evaluation, and recommendations on of the proposed information collection to submit comments. In response to financial assistance under the National request can be obtained by contacting these requests, the Department has Foundation on the Arts and the the office listed below in the addresses decided to extend the comment period Humanities Act of 1965, as amended, section of this Notice. for an additional 30 days. Comments on including information given in

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confidence to the agency. In accordance proposed continuing information ends, OLPA provides support for with the determination of the Chairman collection. innovative new initiatives designed to of February 15, 2012, these sessions will Comments are invited on whether the increase public engagement and be closed to the public pursuant to proposed collection of information is scientific progress. An important aspect subsection (c)(6) of section 552b of title necessary for the proper performance of of scientific progress is the education of 5, United States Code. the functions of the Foundation, future scientists. Improvements in Dated: July 14, 2015. including whether the information will science, technology, engineering and have practical utility; the accuracy of mathematics (STEM) curricula, Kathy Plowitz-Worden, the Foundation’s estimate of the burden particularly changes that engage Panel Coordinator, National Endowment for of the proposed collection of students in the process of research and the Arts. information; ways to enhance the discovery, have become a focal point for [FR Doc. 2015–17679 Filed 7–17–15; 8:45 am] quality, utility, and clarity of the attracting more students into science. BILLING CODE 7537–01–P information to be collected; and ways to Undergraduate research is a significant minimize the burden of the collection of strategy for improving undergraduate information on those who are to STEM education. NATIONAL SCIENCE FOUNDATION respond, including through the use of Community colleges prepare automated collection techniques or technicians who will become an integral Sunshine Act Meetings; National other forms of information technology. part of research efforts and students Science Board DATES: Written comments on this notice who will continue their education at The National Science Board’s must be received by September 18, four-year institutions. Further, they play Committee on Strategy and Budget 2015, to be assured consideration. a significant role in the preparation of (CSB), pursuant to NSF regulations (45 Comments received after that date will underrepresented groups in science. CFR part 614), the National Science be considered to the extent practicable. Community colleges have long Foundation Act, as amended (42 U.S.C. Send comments to address below. recognized the importance of mentoring students and have a history of success 1862n–5), and the Government in the FOR FURTHER INFORMATION CONTACT: Ms. Sunshine Act (5 U.S.C. 552b), hereby in educating underrepresented students Suzanne H. Plimpton, Reports Clearance for successful careers in STEM. Thus, gives notice of the scheduling of a Officer, National Science Foundation, teleconference for the transaction of community colleges play an important 4201 Wilson Boulevard, Suite 1265, role in workforce development in their National Science Board business, as Arlington, Virginia 22230; telephone follows: states and local communities. Industry (703) 292–7556; or send email to frequently looks to community colleges DATE & TIME: Tuesday July 28, 2015 at [email protected]. Individuals who use to provide an educated and 3:00–4:00 p.m. EDT. a telecommunications device for the technologically up-to-date workforce. SUBJECT MATTER: Discussion of the deaf (TDD) may call the Federal The National Science Foundation’s NSF’s FT 2017 budget development. Information Relay Service (FIRS) at 1– (NSF) thrust of incorporating research STATUS: Closed. 800–877–8339, which is accessible 24 into the traditional teaching mission of This meeting will be held by hours a day, 7 days a week, 365 days a the community college is a relatively teleconference. Please refer to the year (including federal holidays). new expansion of its mission. This National Science Board Web site for SUPPLEMENTARY INFORMATION: challenge furthers NSF’s mission by additional information and schedule Title of Collection: Community enabling students to discover and updates (time, place, subject matter or College Innovation Challenge demonstrate their capacity to use status of meeting), which may be found Information Collection. science to make a difference in the at http://www.nsf.gov/nsb/notices/. OMB Number: 3145—NEW. world, and to transfer knowledge into Point of contact for this meeting is Elise Expiration Date of Approval: Not action. Lipkowitz ([email protected]). applicable. The Office of Legislative and Public Type of Request: Intent to seek Dated: July 16, 2015. Affairs (OLPA) requests of the Office of approval to establish an information Management and Budget (OMB) an Suzanne Plimpton, collection for post-challenge outcome approval for an information collection Management Analyst. monitoring system. intended to monitor outputs, short-term, [FR Doc. 2015–17868 Filed 7–16–15; 4:15 pm] Abstract intermediate and long term outcomes of BILLING CODE 7555–01–P OLPA’s new Community College Proposed Project Innovation Challenge. The survey questionnaire, NATIONAL SCIENCE FOUNDATION NSF provides nearly 20 percent of federal funding for basic research to individually tailored to measure outputs and outcomes for this initiative, will Notice of Intent To Seek Approval To academic institutions.1 The Office of provide essential information for Establish an Information Collection Legislative and Public Affairs (OLPA) communicates information about the program monitoring purposes. Data AGENCY: National Science Foundation. activities, programs, research results collected by this collection will be used ACTION: Notice and request for and policies of NSF. OLPA employs a for program planning, management, and evaluation. A summary of monitoring comments. wide variety of tools and techniques to data can be used to respond to queries engage the general public and selected SUMMARY: from Congress, the public, NSF’s Under the Paperwork audiences including Congress, the news external merit reviewers who serve as Reduction Act of 1995, Public Law 104– media, state and local governments, advisors, including Committees of 13 (44 U.S.C. 3501 et seq.), and as part other Federal agencies, and the research Visitors (COVs), and NSF’s Office of the of its continuing effort to reduce and education communities. To these paperwork and respondent burden, the Inspector General. These data are National Science Foundation (NSF) is 1 National Science Foundation. (2012). NSF at a needed for effective administration, inviting the general public or other glance. Retrieved from http://www.nsf.gov/about/ program and project monitoring, Federal agencies to comment on this glance.jsp. evaluation, and for measuring

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attainment of NSF’s program and accurate evidence-based management of entrepreneurship activities among other strategic goals, as identified by the the program and to determine whether indicators. President’s Accountable Government or not the specific goals of the program Use of the Information: The data Initiative, the Government Performance are being met. collected will be used for NSF internal and Results Act (GPRA) Modernization Participants will be invited to submit reports, historical data, program level Act of 2010, and NSF’s Strategic Plan. this information via data collection studies and evaluations, and for The collection included in this request methods that include but are not limited securing future funding for the CCIC is designed to assist in management of to online surveys, interviews, phone program maintenance and growth. the CCIC and to serve as a data resource interviews, etc. The indicators are both These data could be used for program for current and future initiative quantitative and descriptive and may evaluation purposes if deemed evaluations. include number of students majoring in necessary. Evaluation designs could This data collection effort will enable STEM disciplines or joining the STEM make use of metadata associated with OLPA to longitudinally monitor outputs workforce, faculty expressions of the contest, and other characteristics to and outcomes given the unique goals mentoring ability for STEM careers, identify a comparison group to evaluate and purpose of the CCIC. This is very number of participants continuing to the impact of the program funding and important to enable appropriate and participate in innovation or other interesting research questions.

ESTIMATE OF BURDEN

Annual Number of number of Annual hour Collection title respondents responses/ burden respondent

Community College Innovation Challenge Monitoring Collection ...... 410 .25 .1

Total ...... 410 .25 10 .25

Below is an example that shows how college population may transition mentor respondents, who are the hour burden was estimated for the relatively quickly to another school or to community college professors. This monitoring system. the workforce and we might expect a estimated hourly rate is based on a The estimated average number of shorter and more condensed timeline of report from the American Association of annual respondents is 410, with an outcomes and impacts. Thus, we wish University Professors, ‘‘Annual Report estimated annual response burden of to collect data at 6 months and one year on the Economic Status of the 10.25 hours. For post-award monitoring after the challenge, and then once Profession, 2014–15,’’ Academe, systems, OLPA expects to collect data at annually at 3 and 8 years post-award. March–April 2015, Survey Report Table 6 months 1, 3, and 8 years post- 4. According to this report, the average Respondents challenge, in order to have the best salary of an associate professor across chance of capturing the more immediate The respondents are faculty mentors all types of associate’s degree granting outcomes expected by ∼1 year post- and community college students. institutions (public, private- challenge, intermediate outcomes at 3 independent) was $62,221. When Estimates of Annualized Cost to years post-challenge, and long-term divided by the number of standard Respondents for the Hour Burdens outcomes/impacts at 8 years post annual work hours (2,080), this challenge. These four (4) data The overall annualized cost to the calculates to approximately $30 per collections spread over the span of 10 respondents is estimated to be $8,800. hour. For the students, due to the broad years; this averages to 0.25 data The following table shows the range of employment levels, we collections/year. The community annualized estimate of costs to faculty estimated an average hourly rate of $20.

Burden Respondent type Number of hours per Average Estimated respondents respondent hourly rate annual cost

Faculty Mentors ...... 60 1 $30 $1,800 Students ...... 350 1 20 7,000

Estimated Number of Responses per table below shows the total universe Report and sample size for the collections. Data collection involves all finalists and semifinalists in the challenge. The

RESPONDENT UNIVERSE AND SAMPLE SIZE OF CCIC INFORMATION COLLECTIONS

Universe of Collection title respondents Sample size

Community College Innovation Challenge Monitoring Collection ...... 410 410

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Dated: July 15, 2015. The NRC Commission Meeting date by which a request for a hearing or Suzanne H. Plimpton, Schedule can be found on the Internet a petition for leave to intervene must be Reports Clearance Officer, National Science at: http://www.nrc.gov/public-involve/ filed. Foundation. public-meetings/schedule.html. DATES: This correction is effective on [FR Doc. 2015–17698 Filed 7–17–15; 8:45 am] * * * * * July 20, 2015. BILLING CODE 7555–01–P The NRC provides reasonable accommodation to individuals with ADDRESSES: Please refer to Docket ID disabilities where appropriate. If you NRC–2008–0441 when contacting the NUCLEAR REGULATORY need a reasonable accommodation to NRC about the availability of COMMISSION participate in these public meetings, or information regarding this action. You need this meeting notice or the may obtain publicly-available [NRC–2015–0001] transcript or other information from the information related to this action using any of the following methods: Sunshine Act Meeting Notice public meetings in another format (e.g. braille, large print), please notify • Federal Rulemaking Web site: Go to DATE: July 20, 27, August 3, 10, 17, 24, Kimberly Meyer, NRC Disability http://www.regulations.gov and search 2015. Program Manager, at 301–287–0727, by for Docket ID NRC–2008–0441. Address videophone at 240–428–3217, or by PLACE: Commissioners’ Conference questions about NRC dockets to Carol email at Kimberly.Meyer- Room, 11555 Rockville Pike, Rockville, Gallagher; telephone: 301–415–3463; [email protected]. Determinations on Maryland. email: [email protected]. For requests for reasonable accommodation technical questions, contact the STATUS: Public and Closed. will be made on a case-by-case basis. individual listed in the FOR FURTHER Week of July 20, 2015 * * * * * INFORMATION CONTACT section of this document. There are no meetings scheduled for Members of the public may request to the week of July 20, 2015. receive this information electronically. • NRC’s Agencywide Documents If you would like to be added to the Access and Management System Week of July 27, 2015—Tentative distribution, please contact the Nuclear (ADAMS): You may obtain publicly- There are no meetings scheduled for Regulatory Commission, Office of the available documents online in the the week of July 27, 2015. Secretary, Washington, DC 20555 (301– ADAMS Public Documents collection at 415–1969), or email http://www.nrc.gov/reading-rm/ Week of August 3, 2015—Tentative [email protected] or adams.html. To begin the search, select Thursday, August 6, 2015 [email protected]. ‘‘ADAMS Public Documents’’ and then select ‘‘Begin Web-based ADAMS 9:30 a.m. Strategic Programmatic Dated: July 16, 2015. Search.’’ For problems with ADAMS, Overview of the Operating Reactors Richard J. Laufer, please contact the NRC’s Public Business Line (Public Meeting) Technical Coordinator, Office of the Document Room (PDR) reference staff at (Contact: Nathan Sanfilippo: 301– Secretary. 1–800–397–4209, 301–415–4737, or by 415–8744) [FR Doc. 2015–17823 Filed 7–16–15; 4:15 pm] BILLING CODE 7590–01–P email to [email protected]. This meeting will be webcast live at • the Web address—http://www.nrc.gov/. NRC’s PDR: You may examine and purchase copies of public documents at 1:00 p.m. Discussion of Management NUCLEAR REGULATORY the NRC’s PDR, Room O1–F21, One and Personnel Issues (Closed—Ex. 2 COMMISSION White Flint North, 11555 Rockville & 6) [Docket Nos. 052–00027 and 052–00028; Pike, Rockville, Maryland 20852. Week of August 10, 2015—Tentative NRC–2008–0441] FOR FURTHER INFORMATION CONTACT: Thursday, August 13, 2015 Denise McGovern, Office of New Virgil C. Summer Nuclear Station, Reactors, U.S. Nuclear Regulatory 9:00 a.m. Briefing on Greater-Than- Units 2 and 3 Commission, Washington, DC 20555– Class-C Low-Level Radioactive AGENCY: Nuclear Regulatory 0001; telephone: 301–415–0681; email: Waste (Public Meeting) (Contact: [email protected]. Gregory Suber—301–415–8087) Commission. ACTION: License amendment application; This meeting will be webcast live at SUPPLEMENTARY INFORMATION: In the opportunity to comment, request a the Web address—http://www.nrc.gov/. Federal Register of July 9, 2015 (80 FR hearing, and petition for leave to 39450), in FR Doc. 2015–16797, on page Week of August 17, 2015—Tentative intervene; correction. 39450, third column, the DATES Section should be revised to read as follows: There are no meetings scheduled for SUMMARY: The U.S. Nuclear Regulatory ‘‘Submit comments by August 10, 2015. the week of August 17, 2015. Commission (NRC) is correcting a notice Request for a hearing or petition for that was published in the Federal Week of August 24, 2015—Tentative leave to intervene must be filed by Register on July 9, 2015, that gave September 8, 2015.’’ There are no meetings scheduled for notice to the public that it is considering the week of August 24, 2015. issuance of an amendment to Combined Dated in Rockville, Maryland, this 14th * * * * * Licenses (NPF–93 and NPF–94), issued day of July, 2015. The schedule for Commission to South Carolina Electric and Gas For the Nuclear Regulatory Commission. meetings is subject to change on short (SCE&G) and South Carolina Public Cindy Bladey, notice. For more information or to verify Service Authority, for construction and Branch Chief, Rules, Announcements, and the status of meetings, contact Glenn operation of the Virgil C. Summer Directives Branch, Division of Administration Ellmers at 301–415–0442 or via email at Nuclear Station, Units 2 and 3 located Services, Office of Administration. [email protected]. in Fairfield County, South Carolina. [FR Doc. 2015–17677 Filed 7–17–15; 8:45 am] * * * * * This action is being taken to correct the BILLING CODE 7590–01–P

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NUCLEAR REGULATORY Office of Nuclear Material Safety and the termination of the power reactor COMMISSION Safeguards; telephone: 301–415–6634; licenses. In accordance with 10 CFR email: [email protected]; U.S. 50.83, ‘‘Release of Part of a Power [Docket Nos. 50–18 and 50–183; NRC–2015– 0169] Nuclear Regulatory Commission, Reactor Facility or Site for Unrestricted Washington, DC 20555–0001. Use,’’ the licensee requests release from GE Hitachi Nuclear Energy; Vallecitos SUPPLEMENTARY INFORMATION: the NRC licenses, for unrestricted use, Nuclear Center of an approximately 610-acre parcel, in I. Obtaining Information and the northern section of the AGENCY: Nuclear Regulatory Submitting Comments approximately 1,600 acre VNC site. The Commission. A. Obtaining Information licensee is declaring the parcel as ‘‘non- ACTION: Partial site release; public impacted’’ per the definition in 10 CFR Please refer to Docket ID NRC–2015– meeting and request for comment. 50.2. Approval of the request will allow 0169 when contacting the NRC about GE to sell the released portion to a non- SUMMARY: The U.S. Nuclear Regulatory the availability of information for this GE controlled entity. Commission (NRC) is considering a action. You may obtain publicly- The NRC will determine whether the request from GE Hitachi Nuclear Energy available information related to this licensee has adequately evaluated the to approve the release from their NRC action by any of the following methods: power reactor licenses of a portion of • Federal rulemaking Web site: Go to effect of releasing the property per the their Vallecitos Nuclear Center property http://www.regulations.gov and search requirements of 10 CFR 50.83(a)(1), and for unrestricted use. The NRC will for Docket ID NRC–2015–0169. determine whether the licensee’s approve or deny the request based on its • NRC’s Agencywide Documents classification of any released areas as review of the request and the result of Access and Management System ‘‘non-impacted’’ is adequately justified. an NRC confirmatory survey of the (ADAMS): You may obtain publicly- If the NRC determines that the licensee’s property proposed for release. Approval available documents online in the submittal is adequate, the NRC will of the request would allow GE to sell the ADAMS Public Documents collection at inform the licensee in writing that the released portion of the property to a http://www.nrc.gov/reading-rm/ release is approved. non-GE controlled entity. The NRC is adams.html. To begin the search, select II. Public Meeting requesting public comment on the ‘‘ADAMS Public Documents’’ and then contemplated action and invites select ‘‘Begin Web-based ADAMS The NRC will conduct a public stakeholders and interested persons to Search.’’ For problems with ADAMS, meeting to discuss GE’s request for participate. The NRC plans to hold a please contact the NRC’s Public approval of the partial site release. public meeting to promote full Document Room (PDR) reference staff at The meeting will be held on understanding of the contemplated 1–800–397–4209, 301–415–4737, or by Wednesday, July 22, 2015, from 6:30 action and facilitate public comment. email to [email protected]. The p.m. until 8:30 p.m., Pacific Daylight DATES: Submit comments by October 5, ADAMS accession number for each Time, at the Holiday Inn Dublin, 6680 2015. Comments received after this date document referenced (if it is available in Regional St., Dublin, CA 94568. will be considered if it is practical to do ADAMS) is provided the first time that This is a Category 3 public meeting so, but the Commission is able to ensure it is mentioned in the SUPPLEMENTARY where stakeholders are invited to fully consideration only for comments INFORMATION section. engage NRC staff to provide a range of received before this date. A public • NRC’s PDR: You may examine and views, information, concerns and meeting will be held on July 22, 2015. purchase copies of public documents at suggestions with regard to regulatory ADDRESSES: You may submit comments the NRC’s PDR, Room O1–F21, One issues concerning the proposed action. by any of the following methods (unless White Flint North, 11555 Rockville After the licensee and NRC staff this document describes a different Pike, Rockville, Maryland 20852. presentation portions of the meeting, the method for submitting comments on a public is allowed to speak and ask I. Background specific subject): questions. Comments can be provided • Federal Rulemaking Web site: Go to The U.S. Nuclear Regulatory orally or in writing to the NRC staff http://www.regulations.gov and search Commission (NRC) has received, by present at the meeting. for Docket ID NRC–2015–0169. Address letter dated April 24, 2015 (ADAMS The NRC provides reasonable questions about NRC dockets to Carol Accession No. ML15114A437), a request accommodation to individuals with Gallagher; telephone: 301–415–3463; from GE Hitachi Nuclear Energy (GE or disabilities where appropriate. If you email: [email protected]. For licensee), to approve a partial site need a reasonable accommodation to technical questions, contact the release of its Vallecitos Nuclear Center participate in these public meetings, or individual listed in the FOR FURTHER (VNC) site located at 6705 Vallecitos Rd, need this meeting notice or the INFORMATION CONTACT section of this Sunol, California. The VNC site contains transcript or other information from the document. two facilities licensed as power reactors public meetings in another format (e.g., • Mail comments to: Cindy Bladey, under part 50, ‘‘Domestic Licensing of braille, large print), please notify Office of Administration, Mail Stop: Production and Utilization Facilities,’’ Kimberly Meyer, NRC Disability OWFN–12–H08, U.S. Nuclear of Title 10 of the Code of Federal Program Manager, at 301–287–0739, by Regulatory Commission, Washington, Regulations (10 CFR). Both units, videophone at 240–428–3217, or by DC 20555–0001. Vallecitos Boiling Water Reactor email at Kimberly.Meyer-Chambers@ For additional direction on obtaining (VBWR), NRC License DPR–1, Docket nrc.gov. Determinations on requests for information and submitting comments, 50–18, and Empire State Atomic reasonable accommodation will be see ‘‘Obtaining Information and Development Agency Vallecitos made on a case-by-case basis. Submitting Comments’’ in the Experimental Superheat Reactor Stakeholders should monitor the SUPPLEMENTARY INFORMATION section of (EVESR), NRC License DR–10, Docket NRC’s public meeting Web site for this document. 50–183, are shut down per NRC information about the public meeting at: FOR FURTHER INFORMATION CONTACT: Jack regulations in 10 CFR 50.82(a). These http://www.nrc.gov/public-involve/ D. Parrott, Senior Project Manager, units are in ‘‘SAFSTOR’’ mode awaiting public-meetings/index.cfm. The agenda

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will be posted no later than 10 days proposed product is approved by the III. Ordering Paragraphs prior to the meeting. Commission, the Postal Service intends It is ordered: Dated at Rockville, Maryland, this 10th day to file each new IMRS–FPO agreement 1. The Commission establishes Docket of July, 2015. in this docket on or before its effective Nos. MC2015–68 and CP2015–99 to For the Nuclear Regulatory Commission. date, pursuant to 39 U.S.C. 407(d). consider the matters raised in each Request at 5 n.8. docket. Andrew Persinko, To support its Request, the Postal Deputy Director, Division of 2. Pursuant to 39 U.S.C. 505, James F. Service filed an application for non- Callow is appointed to serve as Public Decommissioning, Uranium Recovery, and public treatment of materials filed under Waste Programs, Office of Nuclear Material Representative in these dockets. Safety and Safeguards. seal; a redacted copy of Governors’ 3. Comments are due no later than Decision No. 11–6, which authorizes the [FR Doc. 2015–17763 Filed 7–17–15; 8:45 am] July 21, 2015. product; a set of maximum and BILLING CODE 7590–01–P 4. The Secretary shall arrange for minimum prices; a statement of publication of this order in the Federal supporting justification, as required by Register. 39 CFR 3020.32; a copy of proposed POSTAL REGULATORY COMMISSION mail classification schedule language; a By the Commission. [Docket Nos. MC2015–68 and CP2015–99; copy of the IMRS–FPO model Ruth Ann Abrams, Order No. 2581] agreement; a certification of compliance Acting Secretary. with 39 U.S.C. 3633(a); a redacted copy [FR Doc. 2015–17686 Filed 7–17–15; 8:45 am] New Postal Product of a related management analysis; and BILLING CODE 7710–FW–P supporting financial workpapers. AGENCY: Postal Regulatory Commission. In the attached statement of ACTION: Notice. supporting justification, the Postal SECURITIES AND EXCHANGE Service asserts the IMRS–FPO would SUMMARY: The Commission is noticing a COMMISSION close a gap in currently available postal recent Postal Service filing concerning [Release No. 34–75447; File No. SR– the addition of International product offerings and that the proposed product would generate new revenue NASDAQ–2015–075] Merchandise Return Service and encourage growth in cross-border e- Agreements with Foreign Postal Self-Regulatory Organizations; The commerce via the postal channel. Id., Operators Non-Published Rates to the NASDAQ Stock Market LLC; Notice of Attachment 3 at 4. The Postal Service competitive product list. This notice further contends that IMRS–FPO Filing of Proposed Rule Change informs the public of the filing, invites belongs on the competitive products list Relating to the Listing and Trading of public comment, and takes other because it will not be subsidized by Shares of the First Trust SSI Strategic administrative steps. market dominant products, covers costs Convertible Securities ETF of First DATES: Comments are due: July 21, attributable to it, does not cause Trust Exchange-Traded Fund IV 2015. competitive products as a whole to fail July 14, 2015. ADDRESSES: Submit comments to make the appropriate contribution to Pursuant to Section 19(b)(1) of the electronically via the Commission’s institutional costs, is part of a market Securities Exchange Act of 1934 Filing Online system at http:// over which the Postal Service does not (‘‘Act’’),1 and Rule 19b–4 thereunder,2 www.prc.gov. Those who cannot submit exercise market dominance, and is not notice is hereby given that on July 2, comments electronically should contact covered by the postal monopoly. 2015, The NASDAQ Stock Market LLC the person identified in the FOR FURTHER Request at 2–4. (‘‘Nasdaq’’ or the ‘‘Exchange’’) filed with INFORMATION CONTACT section by II. Notice of Commission Action the Securities and Exchange telephone for advice on filing Commission (‘‘Commission’’) the alternatives. The Commission establishes Docket Nos. MC2015–68 and CP2015–99 to proposed rule change as described in FOR FURTHER INFORMATION CONTACT: consider the Request pertaining to the Items I and II below, which Items have David A. Trissell, General Counsel, at addition of IMRS–FPO to the been prepared by Nasdaq. The 202–789–6820. competitive products list. Commission is publishing this notice to SUPPLEMENTARY INFORMATION: The Commission invites comments on solicit comments on the proposed rule whether the Postal Service’s filings in change from interested persons. Table of Contents the captioned dockets are consistent I. Self-Regulatory Organization’s I. Introduction with the policies of 39 U.S.C. 3632, Statement of the Terms of Substance of II. Notice of Commission Action 3633, or 3642, 39 CFR part 3015, and 39 the Proposed Rule Change III. Ordering Paragraphs CFR part 3020, subpart B. Comments are Nasdaq proposes to list and trade the I. Introduction due no later than July 21, 2015. The public portions of these filings can be shares of the First Trust SSI Strategic In accordance with 39 U.S.C. 3642 accessed via the Commission’s Web site Convertible Securities ETF (the ‘‘Fund’’) and 39 CFR 3020.30 et seq., the United (http://www.prc.gov). of First Trust Exchange-Traded Fund IV States Postal Service (Postal Service) The Commission appoints James F. (the ‘‘Trust’’) under Nasdaq Rule 5735 3 filed a formal request and associated Callow to serve as an officer of the (‘‘Managed Fund Shares’’). The shares supporting information to add Commission to represent the interests of 1 Competitive International Merchandise the general public in these proceedings 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. Return Service Agreements with Foreign (Public Representative). Postal Operators (IMRS–FPO) to the 3 The Commission approved Nasdaq Rule 5735 in 1 Securities Exchange Act Release No. 57962 (June competitive products list. If the (IMRS–FPO) Product to the Competitive Products 13, 2008), 73 FR 35175 (June 20, 2008) (SR– List and Notice of Filing IMRS–FPO Model NASDAQ–2008–039). There are already multiple 1 Request of the United States Postal Service to Agreement and Application for Non-Public actively-managed funds listed on the Exchange; see, Add Competitive International Merchandise Return Treatment of Materials Filed Under Seal, July 10, e.g., Securities Exchange Act Release Nos. 72506 Service Agreements with Foreign Postal Operator 2015 (Request). Continued

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of the Fund are collectively referred to registration statement on Form N–1A regarding the open-end fund’s portfolio. herein as the ‘‘Shares.’’ (‘‘Registration Statement’’) with the Rule 5735(g) is similar to Nasdaq Rule Commission.6 The Fund will be a series 5705(b)(5)(A)(i); however, paragraph (g) II. Self-Regulatory Organization’s of the Trust. The Fund intends to in connection with the establishment of Statement of the Purpose of, and qualify each year as a regulated a ‘‘fire wall’’ between the investment Statutory Basis for, the Proposed Rule investment company (‘‘RIC’’) under adviser and the broker-dealer reflects Change Subchapter M of the Internal Revenue the applicable open-end fund’s In its filing with the Commission, Code of 1986, as amended. portfolio, not an underlying benchmark Nasdaq included statements concerning First Trust Advisors L.P. will be the index, as is the case with index-based the purpose of, and basis for, the investment adviser (‘‘Adviser’’) to the funds. Neither the Adviser nor the Sub- proposed rule change. The text of these Fund. SSI Investment Management Inc. Adviser is a broker-dealer, although the statements may be examined at the will serve as investment sub-adviser Adviser is affiliated with the places specified in Item IV below. (‘‘Sub-Adviser’’) to the Fund and Distributor, a broker-dealer. The Sub- Nasdaq has prepared summaries, set provide day-to-day portfolio Adviser is not affiliated with a broker- forth in Sections A, B, and C below, of management. First Trust Portfolios L.P. dealer. The Adviser has implemented a the most significant aspects of such (the ‘‘Distributor’’) will be the principal fire wall with respect to its broker- statements. underwriter and distributor of the dealer affiliate regarding access to A. Self-Regulatory Organization’s Fund’s Shares. The Bank of New York information concerning the composition Statement of the Purpose of, and Mellon Corporation (‘‘BNY’’) will act as and/or changes to the portfolio. In Statutory Basis for, the Proposed Rule the administrator, accounting agent, addition, personnel of the Adviser who Change custodian and transfer agent to the make decisions on the Fund’s portfolio Fund. composition will be subject to 1. Purpose Paragraph (g) of Rule 5735 provides procedures designed to prevent the use The Exchange proposes to list and that if the investment adviser to the and dissemination of material non- trade the Shares of the Fund under investment company issuing Managed public information regarding the Fund’s Nasdaq Rule 5735, which governs the Fund Shares is affiliated with a broker- portfolio. In the event (a) the Adviser or listing and trading of Managed Fund dealer, such investment adviser shall the Sub-Adviser becomes, or becomes Shares 4 on the Exchange. The Fund will erect a ‘‘fire wall’’ between the newly affiliated with, a broker-dealer, or be an actively-managed exchange-traded investment adviser and the broker- (b) any new adviser or sub-adviser is a fund (‘‘ETF’’). The Shares will be dealer with respect to access to registered broker-dealer or becomes offered by the Trust, which was information concerning the composition affiliated with another broker-dealer, it established as a Massachusetts business and/or changes to such investment will implement a fire wall with respect 7 trust on September 15, 2010.5 The Trust company portfolio. In addition, to its relevant personnel and/or such is registered with the Commission as an paragraph (g) further requires that broker-dealer affiliate, as applicable, investment company and has filed a personnel who make decisions on the regarding access to information open-end fund’s portfolio composition concerning the composition and/or (July 1, 2014), 79 FR 38631 (July 8, 2014) (SR– must be subject to procedures designed changes to the portfolio and will be NASDAQ–2014–050) (order approving listing and to prevent the use and dissemination of subject to procedures designed to trading of First Trust Strategic Income ETF); 69464 material non-public information (April 26, 2013), 78 FR 25774 (May 2, 2013) (SR– prevent the use and dissemination of NASDAQ–2013–036) (order approving listing and material non-public information 6 See Post-Effective Amendment No. 120 to trading of First Trust Senior Loan Fund); and 66489 Registration Statement on Form N–1A for the Trust, regarding such portfolio. (February 29, 2012), 77 FR 13379 (March 6, 2012) dated June 25, 2015 (File Nos. 333–174332 and (SR–NASDAQ–2012–004) (order approving listing First Trust SSI Strategic Convertible 811–22559). The descriptions of the Fund and the and trading of WisdomTree Emerging Markets Shares contained herein are based, in part, on Securities ETF Corporate Bond Fund). The Exchange believes the information in the Registration Statement. The investment objective of the Fund proposed rule change raises no significant issues 7 not previously addressed in those prior An investment adviser to an open-end fund is will be to seek total return. To achieve required to be registered under the Investment Commission orders. its objective, the Fund will invest, under 4 Advisers Act of 1940 (the ‘‘Advisers Act’’). As a A Managed Fund Share is a security that result, the Adviser, the Sub-Adviser and their normal market conditions,8 at least 80% represents an interest in an investment company related personnel are subject to the provisions of of its net assets (including investment registered under the Investment Company Act of Rule 204A–1 under the Advisers Act relating to 1940 (15 U.S.C. 80a–1) (the ‘‘1940 Act’’) organized codes of ethics. This Rule requires investment as an open-end investment company or similar advisers to adopt a code of ethics that reflects the 8 The term ‘‘under normal market conditions’’ as entity that invests in a portfolio of securities fiduciary nature of the relationship to clients as used herein includes, but is not limited to, the selected by its investment adviser consistent with well as compliance with other applicable securities absence of adverse market, economic, political or its investment objectives and policies. In contrast, laws. Accordingly, procedures designed to prevent other conditions, including extreme volatility or an open-end investment company that issues Index the communication and misuse of non-public trading halts in the fixed income markets or the Fund Shares, listed and traded on the Exchange information by an investment adviser must be financial markets generally; operational issues under Nasdaq Rule 5705, seeks to provide consistent with Rule 204A–1 under the Advisers causing dissemination of inaccurate market investment results that correspond generally to the Act. In addition, Rule 206(4)–7 under the Advisers information; or force majeure type events such as price and yield performance of a specific foreign or Act makes it unlawful for an investment adviser to systems failure, natural or man-made disaster, act domestic stock index, fixed income securities index provide investment advice to clients unless such of God, armed conflict, act of terrorism, riot or labor or combination thereof. investment adviser has (i) adopted and disruption or any similar intervening circumstance. 5 The Commission has issued an order, upon implemented written policies and procedures On a temporary basis, including for defensive which the Trust may rely, granting certain reasonably designed to prevent violation, by the purposes, during the initial invest-up period and exemptive relief under the 1940 Act. See investment adviser and its supervised persons, of during periods of high cash inflows or outflows, the Investment Company Act Release No. 30029 (April the Advisers Act and the Commission rules adopted Fund may depart from its principal investment 10, 2012) (File No. 812–13795) (the ‘‘Exemptive thereunder; (ii) implemented, at a minimum, an strategies; for example, it may hold a higher than Relief’’). In addition, the Commission has issued annual review regarding the adequacy of the normal proportion of its assets in cash. During such no-action relief, upon which the Trust may rely, policies and procedures established pursuant to periods, the Fund may not be able to achieve its pertaining to the Fund’s ability to invest in options subparagraph (i) above and the effectiveness of their investment objective. The Fund may adopt a contracts, futures contracts and swap agreements implementation; and (iii) designated an individual defensive strategy when the Adviser believes notwithstanding certain representations in the (who is a supervised person) responsible for securities in which the Fund normally invests have application for the Exemptive Relief. See administering the policies and procedures adopted elevated risks due to political or economic factors Commission No-Action Letter (December 6, 2012). under subparagraph (i) above. and in other extraordinary circumstances.

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borrowings) in the following convertible screening for liquidity and convexity. Short-term debt instruments are securities: 9 convertible notes, bonds Convexity is the ratio of upside move in issued by issuers having a long-term and debentures; convertible preferred the Convertible Security in conjunction debt rating of at least A by Standard & securities; mandatory convertible with appreciation of the Underlying Poor’s Ratings Services (‘‘S&P Ratings’’), securities; 10 contingent convertible Security relative to the downside move Moody’s Investors Service, Inc. securities; 11 synthetic convertible in the Convertible Security in (‘‘Moody’s’’) or Fitch Ratings (‘‘Fitch’’) securities; 12 corporate bonds and conjunction with depreciation of the and have a maturity of one year or less. preferred securities with attached Underlying Security. The screening The Fund may invest in the following warrants; 13 and convertible Rule 144A process will rely on the Sub-Adviser’s short-term debt instruments: (1) Fixed securities 14 (collectively, ‘‘Convertible fundamental credit evaluation of the rate and floating rate U.S. government Securities’’).15 issuers. This credit analysis will allow securities, including bills, notes and Through its investment process, the the Sub-Adviser to attempt to identify bonds differing as to maturity and rates Sub-Adviser will attempt to identify the downside risk of the Convertible of interest, which are either issued or attractive Convertible Securities based Security, assess the value of the guaranteed by the U.S. Treasury or by on its positive view of the Underlying embedded equity and understand the U.S. government agencies or Security or its view of the company’s amount of participation expected with a instrumentalities; (2) certificates of potential for credit improvement. The change in the price of the Underlying deposit issued against funds deposited Sub-Adviser will begin its investment Security. Once attractive Convertible in a bank or savings and loan process by evaluating a large universe of Securities (i.e., Convertible Securities association; (3) bankers’ acceptances, available Convertible Securities and that are most highly ranked, based on a which are short-term credit instruments ranking system incorporating target used to finance commercial 9 Convertible securities are investment characteristics) have been identified, the transactions; (4) repurchase instruments that are normally convertible or Sub-Adviser will use fundamental agreements,16 which involve purchases exchangeable into equity securities (such equity securities are referred to as ‘‘Underlying equity analysis to determine which of of debt securities; (5) bank time Securities’’) and/or the cash equivalent thereof. the attractive Convertible Securities it deposits, which are monies kept on These equity-linked instruments offer the potential believes have a sound Underlying deposit with banks or savings and loan for equity market participation with potential Security with potential for increase in associations for a stated period of time mitigated downside risk in periods of equity market declines. value. In conjunction with its analysis, at a fixed rate of interest; (6) commercial 10 Mandatory convertible securities are the Sub-Adviser will review the overall paper, which is short-term unsecured distinguished as a subset of convertible securities economic situation. In this regard, the promissory notes; 17 and (7) corporate because the conversion is not optional and the Fund will be actively managed, debt obligations. conversion price is based solely upon the market price of the underlying equity security. Mandatory whereby, the Sub-Adviser will assess The Fund may invest up to 20% of its convertible securities automatically convert on the position of the economic cycle and net assets in exchange-traded notes maturity. the performance outlook for certain (‘‘ETNs’’). 11 Contingent convertible securities (which economic sectors. The Sub-Adviser will, The Fund may invest up to 20% of its generally provide for conversion under certain at times, overweight or underweight net assets in exchange-listed equity circumstances) are distinguished as a subset of convertible securities. Similar to mandatory different economic sectors, market securities (referred to collectively as convertible securities (and unlike traditional capitalizations, and credit quality ‘‘Equity Securities’’).18 In addition to convertible securities), some contingent convertible exposures relative to the available U.S. exchange-listed equity securities of securities provide for mandatory conversion under universe of Convertible Securities. The domestic issuers, Equity Securities may certain circumstances. In addition, various contingent convertible securities may contain Sub-Adviser may also adjust the include securities of foreign issuers that features that limit an investor’s ability to convert sensitivity of the portfolio to movements are listed on U.S. or foreign exchanges the security unless certain conditions are met. in the equity market and to interest rates as well as investments in equity 12 A synthetic convertible security will (i) consist based on the macroeconomic outlook. securities that are in the form of of two or more distinct securities whose economic characteristics, when taken together, resemble those The Fund may manage the market American Depositary Receipts (‘‘ADRs’’) of traditional convertible securities (i.e., an income- exposure defensively during periods of or Global Depositary Receipts (‘‘GDRs’’, producing security and the right to acquire an market distress. and together with ADRs, ‘‘Depositary equity security through, for example, an option or The Fund will invest in Convertible Receipts’’).19 a warrant) or (ii) be an exchangeable or equity- linked security issued by a broker-dealer, Securities of any credit quality, investment bank or other financial institution with including unrated securities, and with 16 The Fund intends to enter into repurchase proceeds going directly to the broker-dealer, effective or final maturities of any agreements only with financial institutions and investment bank or other financial institution, as length. Convertible Securities may be dealers believed by the Adviser and/or the Sub- applicable, that has economic characteristics Adviser to present minimal credit risks in similar to those of traditional convertible securities. issued by domestic or foreign entities. accordance with criteria approved by the Board of 13 Other than warrants that represent a The Fund will hold debt securities Trustees of the Trust (‘‘Trust Board’’). The Adviser component of a synthetic convertible security, the (including, in the aggregate, Convertible and/or the Sub-Adviser will review and monitor the Fund’s investments in warrants will be limited to Securities and the debt securities creditworthiness of such institutions. The Adviser and/or the Sub-Adviser will monitor the value of such attached warrants, and such attached warrants described below) of at least 13 non- will be exchange-listed. the collateral at the time the transaction is entered 14 Under normal market conditions, convertible affiliated issuers. into and at all times during the term of the repurchase agreement. Rule 144A securities will have, at the time of Other Investments of the Fund original issuance, $100 million or more principal 17 The Fund may only invest in commercial paper amount outstanding to be considered eligible The Fund may invest up to 20% of its rated A–1 or higher by S&P Ratings, Prime-1 or investments. net assets in short-term debt securities higher by Moody’s or F1 or higher by Fitch. 15 The Adviser expects that, under normal market 18 The Fund may hold Equity Securities either conditions, generally, for a Convertible Security to and other short-term debt instruments through direct investment or upon conversion of a be considered as an eligible investment, after taking (described below), as well as cash Convertible Security into its corresponding into account such an investment, at least 75% of the equivalents, or it may hold cash. The Underlying Security (referred to as a ‘‘Post- Fund’s net assets that are invested in Convertible percentage of the Fund invested in such Conversion Underlying Security’’). Securities will be comprised of Convertible 19 The Fund will not invest in any unsponsored Securities that will have, at the time of original holdings will vary and will depend on Depositary Receipts. In addition, for the avoidance issuance, $200 million or more par amount several factors, including market of doubt, the term ‘‘Equity Securities’’ may include outstanding. conditions. Continued

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The Fund may invest up to 20% of its Adviser and/or the Sub-Adviser.23 The with the Exemptive Relief, the Fund net assets in exchange-listed equity Fund will monitor its portfolio liquidity will issue and redeem Creation Units in index futures contracts, in exchange- on an ongoing basis to determine exchange for an in-kind portfolio of listed and over-the-counter (‘‘OTC’’) whether, in light of current instruments and/or cash in lieu of such index credit default swaps, and in circumstances, an adequate level of instruments (the ‘‘Creation Basket’’). In forward foreign currency exchange liquidity is being maintained, and will addition, if there is a difference between contracts. The use of futures contracts consider taking appropriate steps in the NAV attributable to a Creation Unit may allow the Fund to obtain net long order to maintain adequate liquidity if, and the market value of the Creation or short exposures to selected equity through a change in values, net assets, Basket exchanged for the Creation Unit, indexes. Index credit default swaps may or other circumstances, more than 15% the party conveying instruments with be used to gain exposure to a basket of of the Fund’s net assets are held in the lower value will pay to the other an credit risk by ‘‘selling protection’’ illiquid assets. Illiquid assets include amount in cash equal to the difference against default or other credit events, or securities subject to contractual or other (referred to as the ‘‘Cash Component’’). to hedge a broad market credit risk by restrictions on resale and other Creations and redemptions must be ‘‘buying protection.’’ Forward foreign instruments that lack readily available made by or through an Authorized currency exchange contracts may be markets as determined in accordance Participant that has executed an used to protect the value of the Fund’s with Commission staff guidance.24 agreement that has been agreed to by the Distributor and BNY with respect to portfolio against uncertainty in the level Creation and Redemption of Shares of future currency exchange rates.20 The creations and redemptions of Creation Fund’s investments in derivative The Fund will issue and redeem Units. All standard orders to create instruments will be consistent with the Shares on a continuous basis at net asset Creation Units must be received by the 25 Fund’s investment objective and the value (‘‘NAV’’) only in large blocks of transfer agent no later than the closing 1940 Act and will not be used to seek Shares (‘‘Creation Units’’) in time of the regular trading session on to achieve a multiple or inverse transactions with authorized the NYSE (ordinarily 4:00 p.m., Eastern multiple of an index. The Fund will participants, generally including broker- Time) (the ‘‘Closing Time’’) in each case only enter into transactions in OTC dealers and large institutional investors on the date such order is placed in order index credit default swaps and forward (‘‘Authorized Participants’’). Creation for the creation of Creation Units to be foreign currency exchange contracts Units generally will consist of 50,000 effected based on the NAV of Shares as with counterparties that the Adviser Shares, although this may change from next determined on such date after time to time. Creation Units, however, and/or the Sub-Adviser reasonably receipt of the order in proper form. are not expected to consist of less than believes are capable of performing Shares may be redeemed only in 50,000 Shares. As described in the under the applicable agreement.21 Creation Units at their NAV next Registration Statement and consistent determined after receipt not later than Investment Restrictions the Closing Time of a redemption 23 In reaching liquidity decisions, the Adviser and request in proper form by the Fund The Fund may not invest 25% or the Sub-Adviser may consider the following factors: through the transfer agent and only on the frequency of trades and quotes for the security; more of the value of its total assets in a business day. securities of issuers in any one industry. the number of dealers wishing to purchase or sell the security and the number of other potential The Fund’s custodian, through the This restriction does not apply to (a) purchasers; dealer undertakings to make a market National Securities Clearing obligations issued or guaranteed by the in the security; and the nature of the security and Corporation, will make available on U.S. government, its agencies or the nature of the marketplace in which it trades each business day, prior to the opening instrumentalities or (b) securities of (e.g., the time needed to dispose of the security, the method of soliciting offers and the mechanics of of business of the Exchange, the list of 22 other investment companies. transfer). the names and quantities of the The Fund may hold up to an aggregate 24 The Commission has stated that long-standing instruments comprising the Creation amount of 15% of its net assets in Commission guidelines have required open-end Basket, as well as the estimated Cash funds to hold no more than 15% of their net assets illiquid assets (calculated at the time of in illiquid securities and other illiquid assets. See Component (if any), for that day. The investment), including Rule 144A Investment Company Act Release No. 28193 (March published Creation Basket will apply securities deemed illiquid by the 11, 2008), 73 FR 14618 (March 18, 2008), footnote until a new Creation Basket is 34. See also Investment Company Act Release No. announced on the following business 5847 (October 21, 1969), 35 FR 19989 (December exchange-listed equity securities of business 31, 1970) (Statement Regarding ‘‘Restricted day prior to commencement of trading development companies (‘‘BDCs’’). Securities’’); Investment Company Act Release No. in the Shares. 20 The Fund may also enter into foreign currency 18612 (March 12, 1992), 57 FR 9828 (March 20, transactions on a spot (i.e., cash) basis. 1992) (Revisions of Guidelines to Form N–1A). A Net Asset Value 21 The Fund will seek, where possible, to use fund’s portfolio security is illiquid if it cannot be The Fund’s NAV will be determined counterparties, as applicable, whose financial status disposed of in the ordinary course of business is such that the risk of default is reduced; however, within seven days at approximately the value as of the close of regular trading on the the risk of losses resulting from default is still ascribed to it by the fund. See Investment Company NYSE on each day the NYSE is open for possible. The Adviser and/or the Sub-Adviser will Act Release No. 14983 (March 12, 1986), 51 FR trading. If the NYSE closes early on a evaluate the creditworthiness of counterparties on 9773 (March 21, 1986) (adopting amendments to valuation day, the NAV will be an ongoing basis. In addition to information Rule 2a-7 under the 1940 Act); Investment provided by credit agencies, the Adviser’s and/or Company Act Release No. 17452 (April 23, 1990), determined as of that time. NAV per Sub-Adviser’s analysis will evaluate each approved 55 FR 17933 (April 30, 1990) (adopting Rule 144A Share will be calculated for the Fund by counterparty using various methods of analysis and under the Securities Act of 1933). taking the market price of the Fund’s may consider the Adviser’s and/or Sub-Adviser’s 25 The NAV of the Fund’s Shares generally will total assets, including interest or past experience with the counterparty, its known be calculated once daily Monday through Friday as disciplinary history and its share of market of the close of regular trading on the New York dividends accrued but not yet collected, participation. Stock Exchange (‘‘NYSE’’), generally 4:00 p.m., less all liabilities, and dividing such 22 See Form N–1A, Item 9. The Commission has Eastern Time (the ‘‘NAV Calculation Time’’). NAV amount by the total number of Shares taken the position that a fund is concentrated if it per Share will be calculated by dividing the Fund’s outstanding. The result, rounded to the invests more than 25% of the value of its total net assets by the number of Fund Shares assets in any one industry. See, e.g., Investment outstanding. For more information regarding the nearest cent, will be the NAV per Share. Company Act Release No. 9011 (October 30, 1975), valuation of Fund investments in calculating the All valuations will be subject to review 40 FR 54241 (November 21, 1975). Fund’s NAV, see the Registration Statement. by the Trust Board or its delegate.

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The Fund’s investments will be warrants; 27 and convertible Rule 144A will typically be valued at the official valued daily at market value or, in the securities); 28 (b) except as provided closing price on the business day as of absence of market value with respect to below, short-term U.S. government which such value is being determined. any investments, at fair value. Market securities, commercial paper, bankers’ If there has been no sale on such day, value prices represent last sale or acceptances and short-term corporate or no official closing price in the case official closing prices from a national or debt obligations, all as set forth under of securities traded on the Exchange or foreign exchange (i.e., a regulated ‘‘Other Investments of the Fund’’ the AIM, such equity securities and market) and will primarily be obtained (collectively, ‘‘Short-Term Debt ETNs will typically be valued using fair from third party pricing services (each, Instruments’’); and (c) OTC index credit value pricing. Such equity securities a ‘‘Pricing Service’’). Fair value prices default swaps. Debt instruments may be and ETNs traded on more than one represent any prices not considered valued at evaluated bid prices, as securities exchange will be valued at the market value prices and will either be provided by Pricing Services. Pricing last sale price or official closing price, obtained from a Pricing Service or Services typically value non-exchange- as applicable, on the business day as of determined by the pricing committee of traded instruments utilizing a range of which such value is being determined at the Adviser (the ‘‘Pricing market-based inputs and assumptions, the close of the exchange representing Committee’’),26 in accordance with including readily available market the principal market for such securities. valuation procedures (which may be quotations obtained from broker-dealers Exchange-Listed Convertible revised from time to time) adopted by making markets in such instruments, Securities, exchange-listed equity index the Trust Board (the ‘‘Valuation cash flows, and transactions for futures contracts and exchange-listed Procedures’’), and in accordance with comparable instruments. In pricing index credit default swaps will typically provisions of the 1940 Act. The certain instruments, the Pricing Services be valued at the closing price in the information summarized below is based may consider information about an market where such instruments are on the Valuation Procedures as instrument’s issuer or market activity principally traded. If no official closing currently in effect; however, as noted provided by the Adviser or the Sub- price is available, such instruments will above, the Valuation Procedures are Adviser. be fair valued at the mean of their most amended from time to time and, Short-Term Debt Instruments having a recent bid and asked price on the therefore, such information is subject to remaining maturity of 60 days or less exchange on which they are principally change. when purchased will typically be traded, if available, and otherwise at Certain securities, including in valued at cost adjusted for amortization their closing bid price. particular Convertible Securities, in of premiums and accretion of discounts, Forward foreign currency exchange which the Fund may invest will not be provided the Pricing Committee has contracts will typically be fair valued at listed on any securities exchange or determined that the use of amortized the current day’s interpolated foreign board of trade. Such securities will cost is an appropriate reflection of fair exchange rate, as calculated using the typically be bought and sold by value given market and issuer-specific current day’s spot rate, and the thirty, institutional investors in individually conditions existing at the time of the sixty, ninety and one-hundred-eighty negotiated private transactions that determination. day forward rates provided by a Pricing function in many respects like an OTC Repurchase agreements will typically Service or by certain independent secondary market, although typically no be fair valued as follows: Overnight dealers in such contracts. Because foreign exchanges may be formal market makers will exist. Certain repurchase agreements will be fair open on different days than the days securities, particularly debt securities, valued at cost. Term repurchase during which an investor may purchase will have few or no trades, or trade agreements (i.e., those whose maturity or sell Shares, the value of the Fund’s infrequently, and information regarding exceeds seven days) will be fair valued assets may change on days when a specific security may not be widely at the average of the bid quotations investors are not able to purchase or sell available or may be incomplete. obtained daily from at least two Shares. Assets denominated in foreign Accordingly, determinations of the fair recognized dealers. currencies will be translated into U.S. value of debt securities may be based on Common stocks and other equity dollars at the exchange rate of such infrequent and dated information. securities (including Depositary currencies against the U.S. dollar as Because there is less reliable, objective Receipts, BDCs, Post-Conversion provided by a Pricing Service. The value data available, elements of judgment Underlying Securities, and other Equity of assets denominated in foreign may play a greater role in valuation of Securities), as well as ETNs, listed on currencies will be converted into U.S. debt securities than for other types of any exchange other than the Exchange dollars at the exchange rates in effect at securities. and the London Stock Exchange The following investments will the time of valuation. Alternative Investment Market (‘‘AIM’’) Valuing the Fund’s assets using fair typically be fair valued using will typically be valued at the last sale value pricing can result in using prices information provided by a Pricing price on the exchange on which they are for those assets (particularly assets that Service or obtained from broker-dealer principally traded on the business day trade in foreign markets) that may differ quotations: (a) Convertible Securities as of which such value is being from current market valuations. (including convertible notes, bonds and determined. Such equity securities and debentures; convertible preferred ETNs listed on the Exchange or the AIM Availability of Information securities; mandatory convertible The Fund’s Web site securities; contingent convertible 27 Although the attached warrants will be (www.ftportfolios.com), which will be exchange-listed, for purposes of valuation, these securities; synthetic convertible publicly available prior to the public securities; corporate bonds and Convertible Securities will typically be treated as single non-exchange-listed instruments. offering of Shares, will include a form preferred securities with attached 28 Convertible Securities are generally not of the prospectus for the Fund that may expected to be exchange-listed. However, to the be downloaded. The Web site will 26 The Pricing Committee will be subject to extent the Fund invests in any Convertible procedures designed to prevent the use and Securities that are exchange-listed (referred to as include the Shares’ ticker, CUSIP and dissemination of material non-public information ‘‘Exchange-Listed Convertible Securities’’), they exchange information along with regarding the Fund’s portfolio. will be valued as provided below. additional quantitative information

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updated on a daily basis, including, for Value,’’ that reflects an estimated Shares. Quotation and last sale the Fund: (1) Daily trading volume, the intraday value of the Fund’s Disclosed information for U.S. exchange-listed prior business day’s reported NAV and Portfolio, will be disseminated. equity securities will be available from closing price, mid-point of the bid/ask Moreover, the Intraday Indicative Value, the exchanges on which they are traded spread at the time of calculation of such available on the NASDAQ OMX as well as in accordance with any NAV (the ‘‘Bid/Ask Price’’),29 and a Information LLC proprietary index data applicable CTA plans. Pricing calculation of the premium and service,32 will be based upon the current information for Exchange-Listed discount of the Bid/Ask Price against value for the components of the Convertible Securities; ETNs; the NAV; and (2) data in chart format Disclosed Portfolio and will be updated Depositary Receipts, BDCs, Post- displaying the frequency distribution of and widely disseminated by one or Conversion Underlying Securities, and discounts and premiums of the daily more major market data vendors and other Equity Securities; exchange-listed Bid/Ask Price against the NAV, within broadly displayed at least every 15 equity index futures contracts; and appropriate ranges, for each of the four seconds during the Regular Market exchange-listed index credit default previous calendar quarters. On each Session. The Intraday Indicative Value swaps will be available from the business day, before commencement of will be based on quotes and closing applicable listing exchange and from trading in Shares in the Regular Market prices from the securities’ local market major market data vendors. Pricing 30 Session on the Exchange, the Fund and may not reflect events that occur information for OTC Convertible will disclose on its Web site the subsequent to the local market’s close. Securities (including convertible notes, identities and quantities of the portfolio Premiums and discounts between the bonds and debentures; convertible of securities, and other assets (the Intraday Indicative Value and the preferred securities; mandatory ‘‘Disclosed Portfolio’’ as defined in market price may occur. This should not convertible securities; contingent Nasdaq Rule 5735(c)(2)) held by the be viewed as a ‘‘real time’’ update of the convertible securities; synthetic Fund that will form the basis for the NAV per Share of the Fund, which is convertible securities; corporate bonds Fund’s calculation of NAV at the end of calculated only once a day. and preferred securities with attached the business day.31 The Fund’s The dissemination of the Intraday warrants; 33 and convertible Rule 144A disclosure of derivative positions in the Indicative Value, together with the securities); Short-Term Debt Disclosed Portfolio will include Disclosed Portfolio, will allow investors Instruments (including short-term U.S. information that market participants can to determine the value of the underlying government securities, commercial use to value these positions intraday. portfolio of the Fund on a daily basis paper, bankers’ acceptances and short- On a daily basis, the Fund will disclose and will provide a close estimate of that on the Fund’s Web site the following term corporate debt obligations, all as value throughout the trading day. set forth under ‘‘Other Investments of information regarding each portfolio Investors will also be able to obtain the Fund’’); repurchase agreements; holding, as applicable to the type of the Fund’s Statement of Additional OTC index credit default swaps; and holding: ticker symbol, CUSIP number Information (‘‘SAI’’), the Fund’s annual forward foreign currency exchange or other identifier, if any; a description and semi-annual reports (together, contracts will be available from major of the holding (including the type of ‘‘Shareholder Reports’’), and its Form broker-dealer firms and/or major market holding, such as the type of swap), the N–CSR and Form N–SAR, filed twice a data vendors and/or Pricing Services. identity of the security or other asset or year. The Fund’s SAI and Shareholder instrument underlying the holding, if Reports will be available free upon Additional information regarding the any; quantity held (as measured by, for request from the Fund, and those Fund and the Shares, including example, par value, notional value or documents and the Form N–CSR and investment strategies, risks, creation and number of shares, contracts or units); Form N–SAR may be viewed on-screen redemption procedures, fees, Fund maturity date, if any; coupon rate, if or downloaded from the Commission’s holdings disclosure policies, any; effective date, if any; market value Web site at www.sec.gov. Information distributions and taxes will be included of the holding; and percentage regarding market price and trading in the Registration Statement. weighting of the holding in the Fund’s volume of the Shares will be continually Initial and Continued Listing portfolio. The Web site information will available on a real-time basis throughout be publicly available at no charge. the day on brokers’ computer screens The Shares will be subject to Rule In addition, for the Fund, an and other electronic services. 5735, which sets forth the initial and estimated value, defined in Rule Information regarding the previous 5735(c)(3) as the ‘‘Intraday Indicative continued listing criteria applicable to day’s closing price and trading volume Managed Fund Shares. The Exchange information for the Shares will be 29 The Bid/Ask Price of the Fund will be represents that, for initial and/or determined using the mid-point of the highest bid published daily in the financial section continued listing, the Fund must be in and the lowest offer on the Exchange as of the time of newspapers. Quotation and last sale compliance with Rule 10A–3 34 under of calculation of the Fund’s NAV. The records information for the Shares will be the Act. A minimum of 100,000 Shares relating to Bid/Ask Prices will be retained by the available via Nasdaq proprietary quote Fund and its service providers. will be outstanding at the 30 See Nasdaq Rule 4120(b)(4) (describing the and trade services, as well as in commencement of trading on the three trading sessions on the Exchange: (1) Pre- accordance with the Unlisted Trading Exchange. The Exchange will obtain a Market Session from 4 a.m. to 9:30 a.m., Eastern Privileges and the Consolidated Tape representation from the issuer of the Time; (2) Regular Market Session from 9:30 a.m. to Association (‘‘CTA’’) plans for the 4 p.m. or 4:15 p.m., Eastern Time; and (3) Post- Shares that the NAV per Share will be Market Session from 4 p.m. or 4:15 p.m. to 8 p.m., calculated daily and that the NAV and Eastern Time). 32 Currently, the NASDAQ OMX Global Index the Disclosed Portfolio will be made 31 Under accounting procedures to be followed by Data Service (‘‘GIDS’’) is the NASDAQ OMX global the Fund, trades made on the prior business day index data feed service, offering real-time updates, (‘‘T’’) will be booked and reflected in NAV on the daily summary messages, and access to widely 33 Although the attached warrants will be current business day (‘‘T+1’’). Accordingly, the followed indexes and Intraday Indicative Values for exchange-listed, for purposes of obtaining pricing Fund will be able to disclose at the beginning of the ETFs. GIDS provides investment professionals with information, these Convertible Securities will business day the portfolio that will form the basis the daily information needed to track or trade typically be treated as single non-exchange-listed for the NAV calculation at the end of the business NASDAQ OMX indexes, listed ETFs, or third-party instruments. day. partner indexes and ETFs. 34 See 17 CFR 240.10A–3.

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available to all market participants at which could be indicative of surveillance sharing agreement with the the same time. manipulative or other violative activity. Exchange. When such situations are detected, In addition, the Exchange also has a Trading Halts surveillance analysis follows and general policy prohibiting the With respect to trading halts, the investigations are opened, where distribution of material, non-public Exchange may consider all relevant appropriate, to review the behavior of information by its employees. factors in exercising its discretion to all relevant parties for all relevant Information Circular halt or suspend trading in the Shares of trading violations. the Fund. Nasdaq will halt trading in FINRA, on behalf of the Exchange, Prior to the commencement of the Shares under the conditions will communicate as needed regarding trading, the Exchange will inform its specified in Nasdaq Rules 4120 and trading in the Shares and the exchange- members in an Information Circular of 4121, including the trading pauses traded securities and instruments held the special characteristics and risks under Nasdaq Rules 4120(a)(11) and by the Fund (including Exchange-Listed associated with trading the Shares. (12). Trading may be halted because of Convertible Securities; ETNs; Specifically, the Information Circular market conditions or for reasons that, in Depositary Receipts, BDCs, Post- will discuss the following: (1) The the view of the Exchange, make trading Conversion Underlying Securities, and procedures for purchases and redemptions of Shares in Creation Units in the Shares inadvisable. These may other Equity Securities; exchange-listed (and that Shares are not individually include: (1) The extent to which trading equity index futures contracts; and redeemable); (2) Nasdaq Rule 2111A, is not occurring in the securities and/or exchange-listed index credit default which imposes suitability obligations on the other assets constituting the swaps) with other markets and other Nasdaq members with respect to Disclosed Portfolio of the Fund; or (2) entities that are members of the recommending transactions in the whether other unusual conditions or Intermarket Surveillance Group Shares to customers; (3) how circumstances detrimental to the (‘‘ISG’’),36 and FINRA may obtain information regarding the Intraday maintenance of a fair and orderly trading information regarding trading in market are present. Trading in the Indicative Value and the Disclosed the Shares and the exchange-traded Shares also will be subject to Rule Portfolio is disseminated; (4) the risks securities and instruments held by the 5735(d)(2)(D), which sets forth involved in trading the Shares during Fund from such markets and other circumstances under which Shares of the Pre-Market and Post-Market entities. In addition, the Exchange may the Fund may be halted. Sessions when an updated Intraday obtain information regarding trading in Indicative Value will not be calculated Trading Rules the Shares and the exchange-traded or publicly disseminated; (5) the Nasdaq deems the Shares to be equity securities and instruments held by the requirement that members deliver a securities, thus rendering trading in the Fund from markets and other entities prospectus to investors purchasing Shares subject to Nasdaq’s existing rules that are members of ISG, which includes newly issued Shares prior to or governing the trading of equity securities and futures exchanges, or concurrently with the confirmation of a securities. Nasdaq will allow trading in with which the Exchange has in place transaction; and (6) trading information. the Shares from 4:00 a.m. until 8:00 a comprehensive surveillance sharing The Information Circular will also p.m., Eastern Time. The Exchange has agreement. Moreover, FINRA, on behalf discuss any exemptive, no-action and appropriate rules to facilitate of the Exchange, will be able to access, interpretive relief granted by the transactions in the Shares during all as needed, trade information for certain Commission from any rules under the trading sessions. As provided in Nasdaq fixed income securities held by the Act. Rule 5735(b)(3), the minimum price Fund reported to FINRA’s Trade Additionally, the Information Circular variation for quoting and entry of orders Reporting and Compliance Engine will reference that the Fund is subject in Managed Fund Shares traded on the (‘‘TRACE’’). to various fees and expenses described Exchange is $0.01. At least 90% of the Fund’s net assets in the Registration Statement. The that are invested in Exchange-Listed Surveillance Information Circular will also disclose Convertible Securities; ETNs; the trading hours of the Shares of the The Exchange represents that trading Depositary Receipts, BDCs, Post- Fund and the applicable NAV in the Shares will be subject to the Conversion Underlying Securities, and Calculation Time for the Shares. The existing trading surveillances, other Equity Securities; exchange-listed Information Circular will disclose that administered by both Nasdaq and also equity index futures contracts; and information about the Shares of the the Financial Industry Regulatory exchange-listed index credit default Fund will be publicly available on the Authority (‘‘FINRA’’) on behalf of the swaps (in the aggregate) will be invested Fund’s Web site. Exchange, which are designed to detect in investments that trade in markets that violations of Exchange rules and are members of ISG or are parties to a 2. Statutory Basis applicable federal securities laws.35 The comprehensive surveillance sharing Nasdaq believes that the proposal is Exchange represents that these agreement with the Exchange. Further, consistent with Section 6(b) of the Act procedures are adequate to properly at least 90% of the Underlying in general and Section 6(b)(5) of the Act monitor Exchange trading of the Shares Securities corresponding to the pre- in particular in that it is designed to in all trading sessions and to deter and conversion Convertible Securities held prevent fraudulent and manipulative detect violations of Exchange rules and by the Fund (measured by par value) acts and practices, to promote just and applicable federal securities laws. will trade in markets that are members equitable principles of trade, to foster The surveillances referred to above of ISG or are parties to a comprehensive cooperation and coordination with generally focus on detecting securities persons engaged in facilitating trading outside their normal patterns, 36 For a list of the current members of ISG, see transactions in securities, and to remove www.isgportal.org. The Exchange notes that not all impediments to and perfect the 35 FINRA surveils trading on the Exchange components of the Disclosed Portfolio may trade on pursuant to a regulatory services agreement. The markets that are members of ISG or with which the mechanism of a free and open market Exchange is responsible for FINRA’s performance Exchange has in place a comprehensive and, in general, to protect investors and under this regulatory services agreement. surveillance sharing agreement. the public interest.

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The Exchange believes that the other Equity Securities; exchange-listed Intraday Indicative Value, available on proposed rule change is designed to equity index futures contracts; and the NASDAQ OMX Information LLC prevent fraudulent and manipulative exchange-listed index credit default proprietary index data service, will be acts and practices in that the Shares will swaps (in the aggregate) will be invested widely disseminated by one or more be listed and traded on the Exchange in investments that trade in markets that major market data vendors and broadly pursuant to the initial and continued are members of ISG or are parties to a displayed at least every 15 seconds listing criteria in Nasdaq Rule 5735. The comprehensive surveillance sharing during the Regular Market Session. On Exchange represents that trading in the agreement with the Exchange. Further, each business day, before Shares will be subject to the existing at least 90% of the Underlying commencement of trading in Shares in trading surveillances, administered by Securities corresponding to the pre- the Regular Market Session on the both Nasdaq and also FINRA on behalf conversion Convertible Securities held Exchange, the Fund will disclose on its of the Exchange, which are designed to by the Fund (measured by par value) Web site the Disclosed Portfolio that detect violations of Exchange rules and will trade in markets that are members will form the basis for the Fund’s applicable federal securities laws. of ISG or are parties to a comprehensive calculation of NAV at the end of the Neither the Adviser nor the Sub- surveillance sharing agreement with the business day. Information regarding Adviser is a broker-dealer, although the Exchange. market price and trading volume of the Adviser is affiliated with the The investment objective of the Fund Shares will be continually available on Distributor, a broker-dealer. The Sub- will be to seek total return. To achieve a real-time basis throughout the day on Adviser is not affiliated with a broker- its objective, the Fund will invest, under brokers’ computer screens and other dealer. The Adviser has implemented a normal market conditions, at least 80% electronic services, and quotation and fire wall with respect to its broker- of its net assets (including investment last sale information for the Shares will dealer affiliate regarding access to borrowings) in a portfolio of Convertible be available via Nasdaq proprietary information concerning the composition Securities. The Fund may invest up to quote and trade services, as well as in and/or changes to the portfolio. In 20% of its net assets in exchange-listed accordance with the Unlisted Trading addition, paragraph (g) of Nasdaq Rule equity index futures contracts, in Privileges and the CTA plans for the 5735 further requires that personnel of exchange-listed and OTC index credit Shares. Quotation and last sale the Adviser who make decisions on the default swaps, and in forward foreign information for U.S. exchange-listed open-end fund’s portfolio composition currency exchange contracts. The equity securities will be available from must be subject to procedures designed Fund’s investments in derivative the exchanges on which they are traded to prevent the use and dissemination of instruments will be consistent with the as well as in accordance with any material non-public information Fund’s investment objective and the applicable CTA plans. Pricing regarding the open-end fund’s portfolio. 1940 Act and will not be used to seek information for Exchange-Listed FINRA, on behalf of the Exchange, to achieve a multiple or inverse Convertible Securities; ETNs; will communicate as needed regarding multiple of an index. The Fund may Depositary Receipts, BDCs, Post- trading in the Shares and the exchange- hold up to an aggregate amount of 15% Conversion Underlying Securities, and traded securities and instruments held of its net assets in illiquid assets other Equity Securities; exchange-listed by the Fund (including Exchange-Listed (calculated at the time of investment), equity index futures contracts; and Convertible Securities; ETNs; including Rule 144A securities deemed exchange-listed index credit default Depositary Receipts, BDCs, Post- illiquid by the Adviser and/or the Sub- swaps will be available from the Conversion Underlying Securities, and Adviser. The Fund will monitor its applicable listing exchange and from other Equity Securities; exchange-listed portfolio liquidity on an ongoing basis major market data vendors. Pricing equity index futures contracts; and to determine whether, in light of current information for OTC Convertible exchange-listed index credit default circumstances, an adequate level of Securities (including convertible notes, swaps) with other markets and other liquidity is being maintained, and will bonds and debentures; convertible entities that are members of ISG, and consider taking appropriate steps in preferred securities; mandatory FINRA may obtain trading information order to maintain adequate liquidity if, convertible securities; contingent regarding trading in the Shares and the through a change in values, net assets, convertible securities; synthetic exchange-traded securities and or other circumstances, more than 15% convertible securities; corporate bonds instruments held by the Fund from such of the Fund’s net assets are held in markets and other entities. In addition, illiquid assets. Illiquid assets include and preferred securities with attached the Exchange may obtain information securities subject to contractual or other warrants; and convertible Rule 144A regarding trading in the Shares and the restrictions on resale and other securities); Short-Term Debt exchange-traded securities and instruments that lack readily available Instruments (including short-term U.S. instruments held by the Fund from markets as determined in accordance government securities, commercial markets and other entities that are with Commission staff guidance. paper, bankers’ acceptances and short- members of ISG, which includes The proposed rule change is designed term corporate debt obligations, all as securities and futures exchanges, or to promote just and equitable principles set forth under ‘‘Other Investments of with which the Exchange has in place of trade and to protect investors and the the Fund’’); repurchase agreements; a comprehensive surveillance sharing public interest in that the Exchange will OTC index credit default swaps; and agreement. Moreover, FINRA, on behalf obtain a representation from the issuer forward foreign currency exchange of the Exchange, will be able to access, of the Shares that the NAV per Share contracts will be available from major as needed, trade information for certain will be calculated daily and that the broker-dealer firms and/or major market fixed income securities held by the NAV and the Disclosed Portfolio will be data vendors and/or Pricing Services. Fund reported to FINRA’s TRACE. made available to all market The Fund’s Web site will include a At least 90% of the Fund’s net assets participants at the same time. In form of the prospectus for the Fund and that are invested in Exchange-Listed addition, a large amount of information additional data relating to NAV and Convertible Securities; ETNs; will be publicly available regarding the other applicable quantitative Depositary Receipts, BDCs, Post- Fund and the Shares, thereby promoting information. Trading in Shares of the Conversion Underlying Securities, and market transparency. Moreover, the Fund will be halted under the

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conditions specified in Nasdaq Rules members of ISG, which includes • Send an email to rule-comments@ 4120 and 4121 or because of market securities and futures exchanges, or sec.gov. Please include File Number conditions or for reasons that, in the with which the Exchange has in place SR–NASDAQ–2015–075 on the view of the Exchange, make trading in a comprehensive surveillance sharing subject line. the Shares inadvisable, and trading in agreement. Furthermore, as noted above, the Shares will be subject to Nasdaq investors will have ready access to Paper Comments Rule 5735(d)(2)(D), which sets forth information regarding the Fund’s • circumstances under which Shares of holdings, the Intraday Indicative Value, Send paper comments in triplicate the Fund may be halted. In addition, as the Disclosed Portfolio, and quotation to Brent J. Fields, Secretary, Securities noted above, investors will have ready and last sale information for the Shares. and Exchange Commission, Station access to information regarding the For the above reasons, Nasdaq Place, 100 F Street NE., Washington, DC Fund’s holdings, the Intraday Indicative believes the proposed rule change is 20549. Value, the Disclosed Portfolio, and consistent with the requirements of All submissions should refer to File quotation and last sale information for Section 6(b)(5) of the Act. the Shares. Number SR–NASDAQ–2015–075. This The Fund’s investments will be B. Self-Regulatory Organization’s file number should be included on the valued daily at market value or, in the Statement on Burden on Competition subject line if email is used. To help the absence of market value with respect to Commission process and review your The Exchange does not believe that comments more efficiently, please use any investments, at fair value. Market the proposed rule change will impose only one method. The Commission will value prices represent last sale or any burden on competition that is not post all comments on the Commission’s official closing prices from a national or necessary or appropriate in furtherance foreign exchange (i.e., a regulated of the purposes of the Act. The Internet Web site http://www.sec.gov/ market) and will primarily be obtained Exchange believes that the proposed rules/sro.shtml. Copies of the from Pricing Services. Fair value prices rule change will facilitate the listing and submission, all subsequent represent any prices not considered trading of an additional type of actively- amendments, all written statements market value prices and will either be managed exchange-traded fund that will with respect to the proposed rule obtained from a Pricing Service or enhance competition among market change that are filed with the determined by the Pricing Committee, participants, to the benefit of investors Commission, and all written in accordance with the Valuation and the marketplace. communications relating to the Procedures and in accordance with proposed rule change between the provisions of the 1940 Act. The Pricing C. Self-Regulatory Organization’s Commission and any person, other than Committee will be subject to procedures Statement on Comments on the those that may be withheld from the designed to prevent the use and Proposed Rule Change Received From public in accordance with the dissemination of material non-public Members, Participants or Others information regarding the Fund’s provisions of 5 U.S.C. 552, will be portfolio. Written comments were neither available for Web site viewing and The proposed rule change is designed solicited nor received. printing in the Commission’s Public to perfect the mechanism of a free and III. Date of Effectiveness of the Reference Room, 100 F Street NE., open market and, in general, to protect Proposed Rule Change and Timing for Washington, DC 20549, on official investors and the public interest in that Commission Action business days between the hours of it will facilitate the listing and trading 10:00 a.m. and 3:00 p.m. Copies of the of an additional type of actively- Within 45 days of the date of filing also will be available for managed exchange-traded product that publication of this notice in the Federal inspection and copying at the principal will enhance competition among market Register or within such longer period office of Nasdaq. All comments received participants, to the benefit of investors up to 90 days (i) as the Commission may will be posted without change; the designate if it finds such longer period and the marketplace. As noted above, Commission does not edit personal to be appropriate and publishes its FINRA, on behalf of the Exchange, will identifying information from reasons for so finding or (ii) as to which communicate as needed regarding submissions. You should submit only trading in the Shares and the exchange- the self-regulatory organization consents, the Commission will: (a) By information that you wish to make traded securities and instruments held available publicly. All submissions by the Fund (including Exchange-Listed order approve or disapprove such should refer to File Number SR– Convertible Securities; ETNs; proposed rule change; or (b) institute NASDAQ–2015–075 and should be Depositary Receipts, BDCs, Post- proceedings to determine whether the Conversion Underlying Securities, and proposed rule change should be submitted on or before August 10, 2015. other Equity Securities; exchange-listed disapproved. For the Commission, by the Division of equity index futures contracts; and IV. Solicitation of Comments Trading and Markets, pursuant to delegated exchange-listed index credit default authority.37 swaps) with other markets and other Interested persons are invited to Robert W. Errett, entities that are members of ISG, and submit written data, views, and Deputy Secretary. FINRA may obtain trading information arguments concerning the foregoing, [FR Doc. 2015–17658 Filed 7–17–15; 8:45 am] regarding trading in the Shares and the including whether the proposed rule exchange-traded securities and change is consistent with the Act. BILLING CODE 8011–01–P instruments held by the Fund from such Comments may be submitted by any of markets and other entities. In addition, the following methods: the Exchange may obtain information Electronic Comments regarding trading in the Shares and in the exchange-traded securities and • Use the Commission’s Internet instruments held by the Fund from comment form (http://www.sec.gov/ markets and other entities that are rules/sro.shtml); or 37 17 CFR 200.30–3(a)(12).

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SECURITIES AND EXCHANGE A. Self-Regulatory Organization’s Prior to the expiration of the SPY Pilot COMMISSION Statement of the Purpose of, and Program and based upon the findings of Statutory Basis for, the Proposed Rule the Pilot Report, the Exchange will be [Release No. 34–75448; File No. SR–MIAX– Change able to either extend the SPY Pilot Program, adopt the SPY Pilot Program 2015–46] 1. Purpose on a permanent basis, or terminate the Self-Regulatory Organizations; Miami The Exchange proposes to amend SPY Pilot Program. If the SPY Pilot Exchange Rule 307, Commentary .01, International Securities Exchange LLC; Program is not extended or adopted on Position Limits, and Exchange Rule 309, Notice of Filing and Immediate a permanent basis by the expiration of Commentary .01, Exercise limits, to Effectiveness of a Proposed Rule the Extended Pilot, the position limits extend the duration of the SPY Pilot for SPY would revert to limits in effect Change To Amend Exchange Rules Program through July 12, 2016. There 307 and 309 To Extend the SPY Pilot prior to the commencement of the SPY are no substantive changes being Pilot Program. Program proposed to the SPY Pilot Program. In 2. Statutory Basis July 14, 2015. proposing to extend the SPY Pilot Program, the Exchange affirms its MIAX believes that its proposed rule Pursuant to Section 19(b)(1) of the consideration of several factors that change is consistent with Section 6(b) of Securities Exchange Act of 1934 (the support the proposal to establish the the Act 3 in general, and furthers the ‘‘Act’’),1 and Rule 19b–4 thereunder,2 SPY Pilot Program, which include: (1) objectives of Section 6(b)(5) of the Act 4 notice is hereby given that on July 10, The liquidity of the option and the in particular, in that it is designed to 2015, Miami International Securities underlying security; (2) the market prevent fraudulent and manipulative Exchange LLC (‘‘MIAX’’ or ‘‘Exchange’’) capitalization of the underlying security acts and practices, to promote just and filed with the Securities and Exchange and the securities that make up the S&P equitable principles of trade, to foster Commission (‘‘Commission’’) the 500 Index; (3) options reporting cooperation and coordination with proposed rule change as described in requirements; and (4) financial persons engaged in facilitating Items I and II below, which Items have requirements imposed by MIAX and the transactions in securities, to remove been prepared by the Exchange. The Commission. impediments to and perfect the Commission is publishing this notice to The Exchange notes that it is not mechanisms of a free and open market solicit comments on the proposed rule aware of any problems created by the and a national market system and, in change from interested persons. current SPY Pilot Program and does not general, to protect investors and the foresee any problems with the proposed public interest. I. Self-Regulatory Organization’s extension. The Exchange formally Specifically, the Exchange believes Statement of the Terms of the Substance submitted a Pilot Report for the SPY that extending the SPY Pilot Program of the Proposed Rule Change Pilot Program as part of this filing. In promotes just and equitable principles addition, the Exchange represents that if of trade by permitting market The Exchange is filing a proposal to it chooses to extend or seek permanent participants, including market makers, amend Exchange Rules 307 and 309 to approval of the SPY Pilot Program, the institutional investors and retail extend the pilot program that eliminates Exchange will submit another Pilot investors, to establish greater positions the position and exercise limits for Report at least thirty (30) days prior to when pursuing their investment goals physically-settled options on the SPDR the expiration of the extended SPY Pilot and needs. The Exchange also believes S&P 500 ETF Trust (‘‘SPY Pilot Program time period which would cover that economically equivalent products Program’’). the period between reports. The Pilot should be treated in an equivalent The text of the proposed rule change Report will compare the impact of the manner so as to avoid regulatory is available on the Exchange’s Web site pilot program, if any, on the volumes of arbitrage, especially with respect to at http://www.miaxoptions.com/filter/ SPY options and the volatility in the position limits. Treating SPY and SPX wotitle/rule_filing, at MIAX’s principal price of the underlying SPY contract, options differently by virtue of imposing office, and at the Commission’s Public particularly at expiration. The Pilot different position limits is inconsistent Reference Room. Report also will detail the size and with the notion of promoting just and different types of strategies employed equitable principles of trade and II. Self-Regulatory Organization’s with respect to positions established in removing impediments to perfect the Statement of the Purpose of, and SPY options; note whether any mechanisms of a free and open market. Statutory Basis for, the Proposed Rule problems, in the underlying SPY ETF or At the same time, the Exchange believes Change otherwise, arose as a result of the no- that the elimination of position limits limit approach; and include any other for SPY options would not increase In its filing with the Commission, the information that may be useful in Exchange included statements market volatility or facilitate the ability evaluating the effectiveness of the pilot to manipulate the market. concerning the purpose of and basis for program. In preparing the Pilot Report, the proposed rule change and discussed the Exchange will utilize various data B. Self-Regulatory Organization’s any comments it received on the elements such as volume and open Statement on Burden on Competition proposed rule change. The text of these interest. In addition the Exchange The Exchange does not believe that statements may be examined at the would make available to Commission the proposed rule change will impose places specified in Item IV below. The staff data elements relating to the any burden on competition that is not Exchange has prepared summaries, set effectiveness of the SPY Pilot Program. necessary or appropriate in furtherance forth in sections A, B, and C below, of The Exchange purposes [sic] to extend of the purposes of the Act. The the most significant aspects of such the SPY Pilot Program in order for the proposed rule change is not designed to statements. Exchange and the Commission to have address any aspect of competition, additional time to evaluate the Pilot and 1 15 U.S.C. 78s(b)(1). its effect on the market and to determine 3 15 U.S.C. 78f(b). 2 17 CFR 240.19b–4. whether to seek permanent approval. 4 15 U.S.C. 78f(b)(5).

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whether between the Exchange and its Commission summarily may available publicly. All submissions competitors, or among market temporarily suspend such rule change if should refer to File Number SR–MIAX– participants. Instead, the proposed rule it appears to the Commission that such 2015–46, and should be submitted on or change is designed to allow the SPY action is necessary or appropriate in the before August 10, 2015. Pilot Program to continue as the public interest, for the protection of For the Commission, by the Division of Exchange believes other competing investors, or otherwise in furtherance of Trading and Markets, pursuant to delegated options exchanges will also extend the the purposes of the Act. If the authority.9 SPY Pilot Program for another year. Commission takes such action, the Robert W. Errett, Commission shall institute proceedings Deputy Secretary. C. Self-Regulatory Organization’s to determine whether the proposed rule Statement on Comments on the should be approved or disapproved. [FR Doc. 2015–17659 Filed 7–17–15; 8:45 am] Proposed Rule Change Received From BILLING CODE 8011–01–P Members, Participants, or Others IV. Solicitation of Comments Written comments were neither Interested persons are invited to SECURITIES AND EXCHANGE solicited nor received. submit written data, views, and arguments concerning the foregoing, COMMISSION III. Date of Effectiveness of the including whether the proposed rule [Release No. IA–4140/803–00219] Proposed Rule Change and Timing for change is consistent with the Act. Commission Action Comments may be submitted by any of Crescent Capital Group, LP; Notice of Because the foregoing proposed rule the following methods: Application change does not: (i) Significantly affect Electronic Comments the protection of investors or the public July 14, 2015. • interest; (ii) impose any significant Use the Commission’s Internet AGENCY: Securities and Exchange burden on competition; and (iii) become comment form (http://www.sec.gov/ Commission (‘‘Commission’’). rules/sro.shtml); or ACTION: Notice of application for an operative for 30 days from the date on • which it was filed, or such shorter time Send an email to rule-comments@ exemptive order under Section 206A of as the Commission may designate, it has sec.gov. Please include File Number SR– the Investment Advisers Act of 1940 become effective pursuant to Section MIAX–2015–46 on the subject line. (the ‘‘Advisers Act’’) and Rule 206(4)– 19(b)(3)(A) of the Act and Rule 19b– Paper Comments 5(e) thereunder. 4(f)(6) thereunder.5 • Send paper comments in triplicate A proposed rule change filed APPLICANT: Crescent Capital Group, LP to Brent J. Fields, Secretary, Securities pursuant to Rule 19b–4(f)(6) under the (‘‘Applicant’’). and Exchange Commission, 100 F Street Act 6 normally does not become RELEVANT ADVISERS ACT SECTIONS: NE., Washington, DC 20549–1090. operative for 30 days after the date of its Exemption requested under Section filing. However, Rule 19b–4(f)(6)(iii) 7 All submissions should refer to File 206A of the Advisers Act and Rule Number SR–MIAX–2015–46. This file permits the Commission to designate a 206(4)–5(e) thereunder from Rule number should be included on the shorter time if such action is consistent 206(4)–5(a)(1) under the Advisers Act. with the protection of investors and the subject line if email is used. To help the Commission process and review your SUMMARY OF APPLICATION: Applicant public interest. The Exchange has asked requests that the Commission issue an the Commission to waive the 30-day comments more efficiently, please use only one method. The Commission will order under Section 206A of the operative delay. The Exchange believes Advisers Act and Rule 206(4)–5(e) that waiver of the operative delay is post all comments on the Commission’s Internet Web site (http://www.sec.gov/ thereunder exempting Applicant from consistent with the protection of Rule 206(4)–5(a)(1) under the Advisers investors and the public interest rules/sro.shtml). Copies of the submission, all subsequent Act to permit Applicant to receive because it will allow the SPY Pilot compensation from a government entity Program to continue without amendments, all written statements with respect to the proposed rule client for investment advisory services interruption. The Commission believes provided to the government entity that waiving the 30-day operative delay change that are filed with the Commission, and all written within the two-year period following a is consistent with the protection of contribution by a covered associate of investors and the public interest. communications relating to the proposed rule change between the Applicant to an official of the Therefore, the Commission hereby government entity. waives the operative delay and Commission and any person, other than FILING DATES: The application was filed designates the proposed rule change those that may be withheld from the 8 public in accordance with the on October 31, 2013, and an amended operative upon filing. and restated application was filed on At any time within 60 days of the provisions of 5 U.S.C. 552, will be March 12, 2015. filing of the proposed rule change, the available for Web site viewing and printing in the Commission’s Public HEARING OR NOTIFICATION OF HEARING: An 5 17 CFR 240.19b–4(f)(6). As required under Rule Reference Room, 100 F Street NE., order granting the application will be 19b–4(f)(6)(iii), the Exchange provided the Washington, DC 20549 on official issued unless the Commission orders a Commission with written notice of its intent to file business days between the hours of hearing. Interested persons may request the proposed rule change, along with a brief 10:00 a.m. and 3:00 p.m. Copies of such a hearing by writing to the description and the text of the proposed rule change, at least five business days prior to the date filing also will be available for Commission’s Secretary and serving of filing of the proposed rule change, or such inspection and copying at the principal Applicant with a copy of the request, shorter time as designated by the Commission. office of the Exchange. All comments personally or by mail. Hearing requests 6 17 CFR 240.19b–4(f)(6). received will be posted without change; should be received by the Commission 7 17 CFR 240.19b–4(f)(6)(iii). the Commission does not edit personal by 5:30 p.m. on August 10, 2015, and 8 For purposes only of waiving the 30-day operative delay, the Commission has considered the identifying information from should be accompanied by proof of proposed rule’s impact on efficiency, competition, submissions. You should submit only and capital formation. See 15 U.S.C. 78c(f). information that you wish to make 9 17 CFR 200.30–3(a)(12).

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service on Applicant, in the form of an since that time. Under the terms of the promptly contacted the Committee, affidavit or, for lawyers, a certificate of governing documents of the Funds, which returned the Contribution shortly service. Pursuant to Rule 0–5 under the investors, including the Plan, are not thereafter. At the same time, Applicant Advisers Act, hearing requests should permitted to withdraw their created an escrow account to custody state the nature of the writer’s interest, investments, except under extraordinary advisory fees for the Funds that were any facts bearing upon the desirability circumstances that are beyond the attributable to the Plan. The fees that of a hearing on the matter, the reason for control of either Applicant or the Plan, Applicant otherwise would have earned the request, and the issues contested. for a period of ten years following the during the two-year period following Persons may request notification of a date of the investment (2016 or 2018 for the Contribution (the ‘‘Time Out hearing by writing to the Commission’s Fund IV and Fund V, respectively). Period’’) remain in the escrow account. Secretary. Applicant’s fees were established at the 7. At the time of the Contribution, ADDRESSES: Brent J. Fields, Secretary, inception of the Funds and are not Applicant had developed written Securities and Exchange Commission, subject to renegotiation during the term policies and procedures to assure 100 F Street NE., Washington, DC of the investment. compliance with Rule 206(4)–5. The 20549–1090. Applicant, Crescent 4. In June 2011, an individual known policies and procedures included a Capital Group, LP, c/o George Hawley, to the Contributor, but unrelated to requirement for pre-clearance of all Esq., 1100 Santa Monica Boulevard, Applicant, contacted him directly and political contributions and provided for Suite 2000, Los Angeles, CA 90025. requested a contribution to the quarterly surveys of all covered campaign of Mr. Austin Beutner (the FOR FURTHER INFORMATION CONTACT: Kyle associates. Such policies and ‘‘Recipient’’), a candidate for the office procedures were designed, among other R. Ahlgren, Senior Counsel, or Holly L. of Mayor of Los Angeles (the ‘‘Office’’). Hunter-Ceci, Branch Chief, at (202) 551– things, to assure that any unreported The Office is entitled to appoint political contributions were detected by 6825 (Division of Investment members of the Plan’s Board of Management, Chief Counsel’s Office). Applicant’s compliance department in a Administration who can influence the timely fashion. SUPPLEMENTARY INFORMATION: The selection of investment advisers for the 8. At the time of the Contribution, following is a summary of the Plan and other related public pension communication from the Committee, as application. The complete application plans. On June 10, 2011, the Contributor well as the Committee’s Web site and may be obtained via the Commission’s made a contribution of $1,000 (the other published information, referred Web site either at http://www.sec.gov/ ‘‘Contribution’’) to the Austin Beutner consistently to its ‘‘exploratory’’ rules/iareleases.shtml or by searching for Los Angeles Mayor 2013 Exploratory nature.1 While the Contributor had for the file number, or for an applicant Committee (the ‘‘Committee’’). At the using the Company name box, at received compliance training, he did not time of the Contribution, each of the consider whether Rule 206(4)–5 and http://www.sec.gov/search/search.htm, Committee and the Recipient was an or by calling (202) 551–8090. Applicant’s pre-clearance requirement ‘‘official’’ for purposes of Rule 206(4)– would have applied to contributions Applicant’s Representations 5(f)(6). The Recipient withdrew from the made to exploratory committees. The campaign prior to the election. Contributor therefore did not pre-clear 1. Applicant is registered with the 5. At the time of the Contribution, the Contribution with Applicant as Commission as an investment adviser there was no discussion of the Office’s required under its policies. under the Advisers Act. Applicant appointment powers, influence or 9. Subsequent to the Contribution, provides investment advisory services responsibilities involving any Applicant has enhanced its training to two private equity funds formed in investment of public pension funds. 2006 and 2008, TCW/Crescent Neither Applicant nor the Contributor program by stressing the importance of Mezzanine Partners IV, L.P. (‘‘Fund IV’’) sought to interfere with the Plan’s merit- its pre-clearance requirement and has and TCW/Crescent Mezzanine Partners based selection process for advisory highlighted the fact that contributions to V, L.P. (‘‘Fund V’’, and together with services, nor did they seek to negotiate exploratory and other political Fund IV, the ‘‘Funds’’), as well as higher fees or greater ancillary benefits committees are subject to its pre- additional funds. The Funds are than would be achieved in an arm’s clearance requirement, among other ‘‘covered investment pools’’ as defined length transactions, nor could they things. in Rule 206(4)-5(f)(3)(ii) under the have, as the selections pre-dated the Applicant’s Legal Analysis Advisers Act that make long-term Contribution. Applicant had an existing 1. Rule 206(4)–5(a)(1) under the investments in private companies and relationship with the Plan at the time of other illiquid assets. the Contribution, but did not engage in Advisers Act prohibits a registered 2. Mr. Jean Marc Chapus (the any new sales efforts involving limited investment adviser from providing ‘‘Contributor’’) is a managing partner of partnership interests in the Funds, investment advisory services for Applicant. The Contributor is, and was including any efforts designed to retain compensation to a government entity at all relevant times, a ‘‘covered the investments in the Funds or to within two years after a contribution to associate’’ of Applicant as that term is renegotiate its fees. an official of the government entity is defined in Rule 206(4)–5(f)(2). The 6. Applicant first became aware of the made by the investment adviser or any Contributor frequently has been Contribution one month following the covered associate of the investment solicited for, and has made, political date it was made when, in July 2011, as adviser. The Plan is a ‘‘government contributions in the past. a result of a quarterly survey of political entity,’’ as defined in Rule 206(4)– 3. The Los Angeles City Employees’ contributions conducted by Applicant’s 5(f)(5), the Contributor is a ‘‘covered Retirement System (the ‘‘Plan’’) falls compliance department pursuant to associate’’ as defined in Rule 206(4)– within the definition of a ‘‘government Applicant’s contribution policies and 5(f)(2), and each of the Committee and entity’’ as that term is defined in Rule procedures, the Contribution was self- the Recipient is an ‘‘official’’ as defined 206(4)–5(f)(5)(iii). The Plan invested in reported by the Contributor. Upon 1 The Committee had in fact filed as a campaign the Funds in 2006 and 2008, (for Fund learning of the Contribution, committee with the local election commission. IV and Fund V, respectively) and each Applicant’s chief compliance officer, Under Rule 206(4)–5(f)(6), the term ‘‘official’’ Fund has been closed to new investors with the cooperation of the Contributor, includes election committees.

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in Rule 206(4)–5(f)(6). Rule 206(4)–5(c) 206(4)–5(e), exempting it from the two- 10. Applicant states that the provides that when a government entity year prohibition on compensation Contribution was made solely for the invests in a covered investment pool, imposed by Rule 206(4)–5(a)(1) with purpose of participating in the local the investment adviser to that covered respect to investment advisory services election process, and was not intended investment pool is treated as providing provided to the Funds within the two- to improperly influence any decision by advisory services directly to the year period following the Contribution. the Plan. Applicant notes that the government entity. The Funds are 5. Applicant submits that the Contributor resides in the community in ‘‘covered investment’’ pools as defined exemption is necessary and appropriate which the Recipient was running for in the public interest and consistent in Rule 206(4)–5(f)(3)(ii). office and that the Contributor was 2. Section 206A of the Advisers Act with the protection of investors and the entitled to vote in the election. grants the Commission the authority to purposes fairly intended by the policy ‘‘conditionally or unconditionally and provisions of the Act. Applicant Applicant further states that the exempt any person or transaction . . . further submits that the other factors set Contributor has a history of making from any provision or provisions of [the forth in Rule 206(4)–5 similarly weigh political contributions to candidates for Advisers Act] or of any rule or in favor of granting an exemption to elected office. regulation thereunder, if and to the Applicant to avoid consequences 11. Applicant states that Applicant extent that such exemption is necessary disproportionate to the violation. had an existing relationship with the or appropriate in the public interest and 6. Applicant states that the Plan first Plan at the time of the Contribution, but consistent with the protection of determined to invest in the Funds did not engage in any new sales efforts investors and the purposes fairly before the Contribution was made, and involving limited partnership interests intended by the policy and provisions of established and maintained its in the Funds, including any efforts [the Advisers Act].’’ relationships with Applicant on an designed to retain the investments in arm’s length basis free from any 3. Rule 206(4)–5(e) provides that the the Funds or to renegotiate its fees. Commission may exempt an investment improper influence as a result of the adviser from the prohibition under Rule Contribution. Applicant notes that: (i) 12. Applicant contends that imposing 206(4)–5(a)(1) upon consideration of the The Plan’s most recent investment a limitation on the receipt of advisory factors listed below, among others: decision was made in 2008, prior to the compensation associated with the Plan’s (1) Whether the exemption is Contribution, at the time of its last investment in the Funds would result in necessary or appropriate in the public investment commitment in Fund V; and a disproportionate consequence to interest and consistent with the (ii) due to the committed nature of the Applicant that is not necessary to protection of investors and the purposes Plan’s investment in the Funds, the Plan achieve the intended purposes of Rule fairly intended by the policy and had no investment decision to consider 206(4)–5. Applicant states that neither provisions of the Advisers Act; at the time of the Contribution. Applicant nor the Contributor sought to (2) Whether the investment adviser: 7. Applicant states that it had interfere with the Plan’s merit-based (i) Before the contribution resulting in developed policies and procedures to selection process for advisory services, the prohibition was made, adopted and assure compliance with Rule 206(4)–5, nor did they seek to negotiate higher which included a requirement for pre- implemented policies and procedures fees or greater ancillary benefits than clearance of all political contributions reasonably designed to prevent would be achieved in an arm’s length violations of the rule; and (ii) prior to or and provided for quarterly surveys of all covered associates, and that such transactions, nor could they have, as the at the time the contribution which selections pre-dated the Contribution. resulted in such prohibition was made, quarterly survey prompted the Applicant further states that there was had no actual knowledge of the Contributor to report the Contribution. no violation of Applicant’s fiduciary contribution; and (iii) after learning of Applicant further states that training the contribution: (A) Has taken all was provided to Applicant’s employees, duty to deal fairly or disclose material available steps to cause the contributor including the Contributor, that conflicts of interest given the absence of involved in making the contribution addressed Rule 206(4)–5 and any intent or action by Applicant or the which resulted in such prohibition to Applicant’s policies and procedures. Contributor to influence the selection obtain a return of the contribution; and 8. Applicant states that at no time did process. any employees of Applicant, other than (B) has taken such other remedial or For the Commission, by the Division of preventive measures as may be the Contributor, have any knowledge Investment Management, under delegated appropriate under the circumstances; that the Contribution had been made authority. prior to its disclosure by the Contributor (3) Whether, at the time of the Robert W. Errett, contribution, the contributor was a in July 2011. Deputy Secretary. covered associate or otherwise an 9. Applicant states that once the employee of the investment adviser, or Contribution was discovered, Applicant [FR Doc. 2015–17715 Filed 7–17–15; 8:45 am] was seeking such employment; began to gather additional facts about BILLING CODE 8011–01–P (4) The timing and amount of the the Contribution and the Committee, contribution which resulted in the and fees attributable to the Plan’s prohibition; investment in the Funds were placed in (5) The nature of the election (e.g., escrow. Applicant further states that federal, state or local); and after learning of the Contribution, (6) The contributor’s apparent intent Applicant took steps to limit the or motive in making the contribution Contributor’s contact with any which resulted in the prohibition, as representative of the Plan or related evidenced by the facts and plans for the duration of the Time Out circumstances surrounding such Period, and that the Contributor had no contribution. contact with any representative of the 4. Applicant requests an order Plan or related plans during the Time pursuant to Section 206A and Rule Out Period.

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SECURITIES AND EXCHANGE of the most significant parts of such NYSE is $0.0015 per share, which is COMMISSION statements. equal to the current NYSE rebate for execution of customer orders that add [Release No. 34–75449; File No. SR– A. Self-Regulatory Organization’s liquidity to the NYSE. The Exchange is NYSEARCA–2015–55] Statement of the Purpose of, and the proposing to lower the credits for Statutory Basis for, the Proposed Rule routing Tier 1 and Tier 2 PO+ Orders to Self-Regulatory Organizations; NYSE Change Arca, Inc.; Notice of Filing and the NYSE by the same amount ($0.0001) Immediate Effectiveness of Proposed 1. Purpose as the decrease in the corresponding NYSE credit. The proposed new credit Rule Change Amending the NYSE Arca The Exchange proposes to amend the for such orders routed to the NYSE that Equities Schedule of Fees and Fee Schedule to (i) raise the Tier 1 and provide liquidity to the NYSE would be Charges for Exchange Services Tier 2 fee for Market and Auction-Only $0.0014 per share. This proposed fee Orders executed in an Opening, Market July 14, 2015. change would maintain the current Order or Trading Halt Auction and Pursuant to Section 19(b)(1) 1 of the relationship with NYSE rates. make corresponding changes in the Securities Exchange Act of 1934 (the The Exchange proposes to make Basic Rate pricing; (ii) modify the Tier ‘‘Act’’) 2 and Rule 19b–4 thereunder,3 corresponding changes to the Basic Rate 1 and Tier 2 credits the Exchange notice is hereby given that, on June 24, pricing section of the Fee Schedule. provides for routing certain orders to the 2015, NYSE Arca, Inc. (the ‘‘Exchange’’ Currently, the credit for PO+ Orders that NYSE and make corresponding changes or ‘‘NYSE Arca’’) filed with the provide liquidity to the NYSE is set at in the Basic Rate pricing; and (iii) revise Securities and Exchange Commission $0.0015 per share. The Exchange the Tape B Step Up Tier. The Exchange (the ‘‘Commission’’) the proposed rule proposes to lower this credit to $0.0014 proposes to implement the fee changes change as described in Items I, II, and per share. Again, this proposed fee on July 1, 2015. III below, which Items have been change would maintain the current For Tier 1 and Tier 2, the Exchange prepared by the self-regulatory relationship with NYSE rates. currently charges $0.0010 per share for organization. The Commission is Finally, the Exchange proposes to Market and Auction-Only Orders publishing this notice to solicit revise the Tape B Step Up Tier. executed in an Opening, Market Order comments on the proposed rule change Currently, ETP Holders and Market or Trading Halt Auction with a cap of from interested persons. Makers, that, on a daily basis, measured $20,000 per month per Equity Trading monthly, directly execute providing I. Self-Regulatory Organization’s Permit ID. The Exchange proposes to volume in Tape B Securities during a Statement of the Terms of Substance of raise this fee from $0.0010 to $0.0015 billing month (‘‘Tape B Adding ADV’’) the Proposed Rule Change per share. The Exchange is not that is equal to at least 0.275% of the The Exchange proposes to amend the proposing any change to the cap. U.S. Tape B Consolidated Average Daily NYSE Arca Equities Schedule of Fees The Exchange proposes to make Volume (‘‘Tape B CADV’’) for the billing and Charges for Exchange Services corresponding changes to the Basic Rate month over the ETP Holder’s or Market (‘‘Fee Schedule’’) to (i) raise the fee for pricing section of the Fee Schedule. Maker’s May 2013 Tape B Adding ADV Market and Auction-Only Orders Specifically, in the Basic Rate pricing taken as a percentage of Tape B CADV executed in an Opening, Market Order section, the current fee for Market and (‘‘Tape B Baseline % CADV’’) receive a or Trading Halt Auction; (ii) modify the Auction-Only Orders executed in an credit of $0.0004 per share for orders credits the Exchange provides for Opening, Market Order or Trading Halt that provide liquidity to the Exchange in routing certain orders to the New York Auction is $0.0010 per share, with a cap Tape B Securities, which is in addition Stock Exchange LLC (‘‘NYSE’’); and (iii) of $20,000 per month per Equity to the ETP Holder’s Tiered or Basic Rate revise the Tape B Step Up Tier. The Trading Permit ID. The Exchange credit(s). The Exchange proposes to Exchange proposes to implement the proposes to raise this fee to $0.0015 per specify in the Fee Schedule that ETP changes on July 1, 2015. share. The Exchange is not proposing Holders that qualify for the Cross-Asset The text of the proposed rule change any change to the cap. Tier would not be eligible to qualify for is available on the Exchange’s Web site In a recent rule filing, the NYSE has the Tape B Step Up Tier. The Exchange at www.nyse.com, at the principal office proposed to modify its fee structure for believes that the credit of $0.0030 per of the Exchange, and at the equities transaction, including changes share is sufficient that an ETP Holder Commission’s Public Reference Room. to the rates for providing liquidity, to that qualifies for the Cross-Asset Tier become effective July 1, 2015.4 The should not also receive the increased II. Self-Regulatory Organization’s Exchange’s current credits for routing credits applicable to the Tape B Step Up Statement of the Purpose of, and orders to NYSE are closely related to the Tier. Similar to Retail Order Tier ETP Statutory Basis for, the Proposed Rule NYSE’s rates, including credits for Holders and Market Makers, who are Change providing liquidity, and the Exchange is currently ineligible to qualify for the In its filing with the Commission, the proposing an adjustment to its routing Tape B Step Up Tier, the Exchange self-regulatory organization included credits to maintain the existing proposes to exclude Cross-Asset Tier statements concerning the purpose of, relationship to the rates proposed by the ETP Holders from also qualifying for the and basis for, the proposed rule change NYSE. Specifically, for Tier 1 and Tier Tape B Step Up Tier. and discussed any comments it received 2 PO+ orders,5 the current Exchange The proposed changes are not on the proposed rule change. The text credit for orders that are routed to the otherwise intended to address any other of those statements may be examined at NYSE that provide liquidity to the issues, and the Exchange is not aware of the places specified in Item IV below. any problems that ETP Holders would The Exchange has prepared summaries, 4 See SR–NYSE–2015–30. have in complying with the proposed set forth in sections A, B, and C below, 5 A PO+ Order is a Primary Only Order (i.e., a changes. market or limit order that is to be routed to the primary market) that is entered for participation in 2. Statutory Basis 1 15 U.S.C. 78s(b)(1). the primary market, other than for participation in 2 15 U.S.C. 78a. the primary market opening or primary market re- The Exchange believes that the 3 17 CFR 240.19b–4. opening. See NYSE Arca Equities Rule 7.31(f)(1)(C). proposed rule change is consistent with

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Section 6(b) of the Act,6 in general, and plus a Tape B Step Up credit of $0.0004 C. Self-Regulatory Organization’s furthers the objectives of Sections for a total credit of $0.0027, compared Statement on Comments on the 6(b)(4) and (5) of the Act,7 in particular, with the standalone Cross-Asset credit Proposed Rule Change Received From because it provides for the equitable of $0.0030. The Exchange notes that Members, Participants, or Others allocation of reasonable dues, fees, and Cross-Asset Tier ETP Holders and No written comments were solicited other charges among its members, Market Makers currently do not qualify or received with respect to the proposed issuers and other persons using its for Tape C Step Up Tier 2 credit. rule change. facilities and does not unfairly discriminate between customers, Finally, the Exchange believes that it III. Date of Effectiveness of the issuers, brokers or dealers. is subject to significant competitive Proposed Rule Change and Timing for The Exchange believes that the forces, as described below in the Commission Action proposed fee increase for Market and Exchange’s statement regarding the The foregoing rule change is effective Auction-Only Orders executed in an burden on competition. For these upon filing pursuant to Section Opening, Market Order or Trading Halt reasons, the Exchange believes that the 19(b)(3)(A) 12 of the Act and Auction are reasonable because they are proposal is consistent with the Act. subparagraph (f)(2) of Rule 19b–4 13 the same as the fees imposed by at least B. Self-Regulatory Organization’s thereunder, because it establishes a due, one other exchange.8 In addition, the Statement on Burden on Competition fee, or other charge imposed by the proposed fee changes are equitable and Exchange. not unfairly discriminatory because they In accordance with Section 6(b)(8) of At any time within 60 days of the apply uniformly to all similarly situated the Act,9 the Exchange believes that the filing of such proposed rule change, the ETP Holders. proposed rule change would not impose Commission summarily may The Exchange believes that the any burden on competition that is not temporarily suspend such rule change if proposed changes to routing credits for necessary or appropriate in furtherance it appears to the Commission that such PO+ Orders that provide liquidity to the of the purposes of the Act. In particular, action is necessary or appropriate in the NYSE are reasonable because the the proposed routing credit changes public interest, for the protection of Exchange’s credits for routing such would not place a burden on investors, or otherwise in furtherance of orders are closely related to the NYSE’s the purposes of the Act. If the competition because the Exchange is rebates for its members for providing Commission takes such action, the seeking to align its credits with the liquidity, and the proposed change is Commission shall institute proceedings credits provided by the NYSE.10 In consistent with the change proposed by under Section 19(b)(2)(B) 14 of the Act to the NYSE to lower its rebate for addition, the proposed change to the determine whether the proposed rule providing liquidity. The proposed Exchange’s fee for Market and Auction- change should be approved or change would result in maintaining the Only Orders executed in an Opening, disapproved. existing relationship between the two Market Order or Trading Halt Auction is sets of fees. In addition, the Exchange consistent with the fee charged by at IV. Solicitation of Comments believes that the proposed rule change, least one other exchange.11 Interested persons are invited to which would result in a decrease in the The Exchange does not believe submit written data, views, and per share credit for PO+ Orders routed prohibiting Cross-Asset Tier ETP arguments concerning the foregoing, to the NYSE that provide liquidity to the Holders from qualifying for increased including whether the proposed rule NYSE, would thereby align the rate that credit(s) will impair ETP Holders’ change is consistent with the Act. Comments may be submitted by any of the Exchange provides to ETP Holders ability to compete. The Exchange the following methods: with the rate that NYSE provides to its already provides a credit for Cross-Asset members for providing liquidity. Tier ETP Holders and ETP Holders Electronic Comments Further, the proposed change is impacted by the proposed change may • equitable and not unfairly Use the Commission’s Internet readily adjust their trading behavior to discriminatory because the rebate comment form (http://www.sec.gov/ maintain or increase their credits or rules/sro.shtml); or reduction would apply uniformly across • pricing tiers and all similarly situated decrease their fees in a favorable Send an email to rule-comments@ ETP Holders would be subject to the manner. sec.gov. Please include File Number SR– same credit. The Exchange notes that it operates in NYSEARCA–2015–55 on the subject The Exchange believes that a highly competitive market in which line. prohibiting Cross-Asset Tier ETP market participants can readily favor Paper Comments Holders from qualifying for the Tape B competing venues. In such an • Send paper comments in triplicate Step Up Tier is reasonable, equitable environment, the Exchange must to Brent J. Fields, Secretary, Securities and not unfairly discriminatory because continually review, and consider and Exchange Commission, 100 F Street ETP Holders that qualify for the Cross- adjusting, its fees and credits to remain NE., Washington, DC 20549–1090. Asset Tier would already receive a competitive with other exchanges. For All submissions should refer to File higher credit of $0.0030 before the Tape the reasons described above, the B Step Up Credit, which is higher than Number SR–NYSEARCA–2015–55. This Exchange believes that the proposed file number should be included on the other tiers with the Tape B Step Up rule change promotes a competitive credit. For example, Tier 1 ETP Holders subject line if email is used. To help the environment. that qualify for Tape B Step Up Tier Commission process and review your would receive a Tier 1 credit of $0.0023 comments more efficiently, please use only one method. The Commission will 6 15 U.S.C. 78f(b). post all comments on the Commission’s 7 15 U.S.C. 78f(b)(4) and (5). 9 15 U.S.C. 78f(b)(8). 12 8 See NASDAQ Crossing Network Fees at http:// 15 U.S.C. 78s(b)(3)(A). www.nasdaqtrader.com/ 10 See supra note 4. 13 17 CFR 240.19b–4(f)(2). Trader.aspx?id=PriceListTrading2. 11 See supra note 8. 14 15 U.S.C. 78s(b)(2)(B).

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Internet Web site (http://www.sec.gov/ Commission is publishing this notice to executed will be replaced with a single rules/sro.shtml). Copies of the solicit comments on the proposed rule credit tier of $0.0020 per share executed submission, all subsequent change from interested persons. for all orders with midpoint pegging 3 amendments, all written statements that provide liquidity to create further I. Self-Regulatory Organization’s with respect to the proposed rule incentives to provide midpoint liquidity Statement of the Terms of Substance of change that are filed with the on PSX for the benefit of investors and Commission, and all written the Proposed Rule Change other market participants. communications relating to the The Exchange proposes to amend the 2. Statutory Basis proposed rule change between the Exchange’s Pricing Schedule under Commission and any person, other than Section VIII, entitled ‘‘NASDAQ OMX The Exchange believes that the those that may be withheld from the PSX FEES,’’ with respect to execution proposed rule change is consistent with public in accordance with the and routing of orders in securities the provisions of Section 6 of the Act,4 provisions of 5 U.S.C. 552, will be priced at $1 or more per share. in general, and with Section 6(b)(4) and available for Web site viewing and While the changes proposed herein 6(b)(5) of the Act,5 in particular, in that printing in the Commission’s Public are effective upon filing, the Exchange it provides for the equitable allocation Reference Section, 100 F Street NE., has designated that the amendments be of reasonable dues, fees and other Washington, DC 20549–1090. Copies of operative on July 1, 2015. charges among members and issuers and the filing will also be available for The text of the proposed rule change other persons using any facility or inspection and copying at the NYSE’s is available on the Exchange’s Web site system which the Exchange operates or principal office and on its Internet Web at http:// controls, and is not designed to permit site at www.nyse.com. All comments nasdaqomxphlx.cchwallstreet.com/, at unfair discrimination between received will be posted without change; the principal office of the Exchange, and customers, issuers, brokers, or dealers. the Commission does not edit personal at the Commission’s Public Reference The proposed increases to the credits identifying information from Room. in the fee schedule under the submissions. You should submit only Exchange’s Pricing Schedule under information that you wish to make II. Self-Regulatory Organization’s Section VIII are reflective of the available publicly. All submissions Statement of the Purpose of, and Exchange’s ongoing efforts to use should refer to File Number SR– Statutory Basis for, the Proposed Rule pricing incentive programs to attract NYSEARCA–2015–55 and should be Change order flow to the Exchange and improve submitted on or before August 7, 2015. In its filing with the Commission, the market quality. The goal of these pricing incentives is to provide meaningful For the Commission, by the Division of Exchange included statements Trading and Markets, pursuant to delegated concerning the purpose of and basis for incentives for members to increase their authority.15 the proposed rule change and discussed participation on the Exchange. The Exchange is proposing to increase Robert W. Errett, any comments it received on the proposed rule change. The text of these non-displayed order credits for all Deputy Secretary. orders with midpoint pegging that statements may be examined at the [FR Doc. 2015–17660 Filed 7–17–15; 8:45 am] provide liquidity through PSX by places specified in Item IV below. The BILLING CODE 8011–01–P replacing the existing two such tiers Exchange has prepared summaries, set with a single tier. Specifically, the credit forth in sections A, B, and C below, of tiers for non-displayed orders of a the most significant aspects of such SECURITIES AND EXCHANGE $0.0015 per share executed credit for statements. COMMISSION orders with midpoint pegging that [Release No. 34–75446; File No. SR–Phlx– A. Self-Regulatory Organization’s provide liquidity entered by a member 2015–58] Statement of the Purpose of, and organization that provides 1,000,000 Statutory Basis for, the Proposed Rule shares or more average daily volume of Self-Regulatory Organizations; Change non-displayed liquidity during the NASDAQ OMX PHLX LLC; Notice of month and the credit tier for non- Filing and Immediate Effectiveness of 1. Purpose displayed orders of $0.0010 per share Proposed Rule Change Relating to the The purpose of the proposed rule executed will be replaced with a single Exchange’s Pricing Schedule under change is to amend certain credits for credit tier of $0.0020 per share executed Section VIII With Respect to Execution order execution and routing applicable for all orders with midpoint pegging and Routing of Orders in Securities to the use of the order execution and that provide liquidity. Priced at $1 or More per Share routing services of the NASDAQ OMX The Exchange believes the proposed July 14, 2015. PSX System (‘‘PSX’’) by member change is reasonable because the Pursuant to Section 19(b)(1) of the organizations for all securities traded at increase to the credit for all orders with Securities Exchange Act of 1934 $1 or more per share. midpoint pegging that provide liquidity (‘‘Act’’),1 and Rule 19b–4 2 thereunder, The Exchange will increase non- provides member organizations with a notice is hereby given that, on June 30, displayed order credits for all orders uniform credit designed to incentivize 2015, NASDAQ OMX PHLX LLC with midpoint pegging that provide increased midpoint liquidity on PSX. (‘‘Phlx’’ or ‘‘Exchange’’) filed with the liquidity through PSX. Specifically, the Additionally, the Exchange believes Securities and Exchange Commission credit tiers for non-displayed orders of providing a greater credit will act as an (‘‘Commission’’) the proposed rule a $0.0015 per share executed credit for incentive for members to increase their change as described in Items I, II, and orders with midpoint pegging that participation on the Exchange. III, below, which Items have been provide liquidity entered by a member organization that provides 1,000,000 3 Including the Midpoint Peg Post-Only Order prepared by the Exchange. The recently filed with the Commission, once effective shares or more average daily volume of and operative. See SR–PHLX–2015–056 (as recently 15 17 CFR 200.30–3(a)(12). non-displayed liquidity during the filed). 1 15 U.S.C. 78s(b)(1). month and the credit tier for non- 4 15 U.S.C. 78f. 2 17 CFR 240.19b–4. displayed orders of $0.0010 per share 5 15 U.S.C. 78f(b)(4) and (5).

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The Exchange believes that the C. Self-Regulatory Organization’s those that may be withheld from the proposed rule change is consistent with Statement on Comments on the public in accordance with the an equitable allocation of fees and is not Proposed Rule Change Received From provisions of 5 U.S.C. 552, will be unfairly discriminatory because the Members, Participants, or Others available for Web site viewing and single credit for all orders with No written comments were either printing in the Commission’s Public midpoint pegging that provide liquidity solicited or received. Reference Room, 100 F Street NE., is uniformly available to all members Washington, DC 20549, on official and affects all members equally and in III. Date of Effectiveness of the business days between the hours of the same way. Proposed Rule Change and Timing for 10:00 a.m. and 3:00 p.m. Copies of such Commission Action filing also will be available for B. Self-Regulatory Organization’s The foregoing rule change has become inspection and copying at the principal Statement on Burden on Competition effective pursuant to Section office of the Exchange. All comments 7 The Exchange does not believe that 19(b)(3)(A)(ii) of the Act. At any time received will be posted without change; the proposed rule change will result in within 60 days of the filing of the the Commission does not edit personal any burden on competition that is not proposed rule change, the Commission identifying information from necessary or appropriate in furtherance summarily may temporarily suspend submissions. You should submit only of the purposes of the Act, as amended.6 such rule change if it appears to the information that you wish to make Phlx notes that it operates in a highly Commission that such action is available publicly. All submissions necessary or appropriate in the public should refer to File Number SR-Phlx- competitive market in which market interest, for the protection of investors, 2015–58 and should be submitted on or participants can readily favor dozens of or otherwise in furtherance of the before August 10, 2015. different competing exchanges and purposes of the Act. If the Commission alternative trading systems if they deem For the Commission, by the Division of takes such action, the Commission shall charges at a particular venue to be Trading and Markets, pursuant to delegated institute proceedings to determine 8 excessive, or credit opportunities authority. whether the proposed rule should be available at other venues to be more Robert W. Errett, approved or disapproved. favorable. In such an environment, the Deputy Secretary. Exchange must continually adjust its IV. Solicitation of Comments [FR Doc. 2015–17657 Filed 7–17–15; 8:45 am] charges and credits to remain Interested persons are invited to BILLING CODE 8011–01–P competitive with other exchanges. submit written data, views, and Because competitors are free to modify arguments concerning the foregoing, their own charges and credits in including whether the proposed rule DEPARTMENT OF STATE response, and because market change is consistent with the Act. [Public Notice: 9196] participants may readily adjust their Comments may be submitted by any of order routing practices, the Exchange the following methods: Culturally Significant Objects Imported believes that the degree to which Electronic Comments for Exhibition Determinations: ‘‘New changes to charges and credits in this Objectivity: Modern German Art in the • market may impose any burden on Use the Commission’s Internet Weimar Republic 1919–1933’’ competition is extremely limited. comment form (http://www.sec.gov/ Exhibition In this instance, the changes to the rules/sro.shtml); or • SUMMARY: Notice is hereby given of the credits for all orders with midpoint Send an email to rule-comments@ following determinations: Pursuant to pegging that provide liquidity do not sec.gov. Please include File Number SR– the authority vested in me by the Act of impose a burden on competition Phlx–2015–58 on the subject line. October 19, 1965 (79 Stat. 985; 22 U.S.C. because Exchange membership is Paper Comments 2459), E.O. 12047 of March 27, 1978, the optional and is the subject of • Send paper comments in triplicate Foreign Affairs Reform and competition from other exchanges. The to Secretary, Securities and Exchange Restructuring Act of 1998 (112 Stat. increased credit is reflective of the Commission, 100 F Street NE., 2681, et seq.; 22 U.S.C. 6501 note, et intent to increase the order flow on the Washington, DC 20549–1090. seq.), Delegation of Authority No. 234 of Exchange. For these reasons, the All submissions should refer to File October 1, 1999, Delegation of Authority Exchange does not believe that the Number SR-Phlx-2015–58. This file No. 236–3 of August 28, 2000 (and, as proposed changes will impair the ability number should be included on the appropriate, Delegation of Authority No. of members or competing order subject line if email is used. To help the 257 of April 15, 2003), I hereby execution venues to maintain their Commission process and review your determine that the objects to be competitive standing in the financial comments more efficiently, please use included in the exhibition ‘‘New markets. Moreover, because there are only one method. The Commission will Objectivity: Modern German Art in the numerous competitive alternatives to post all comments on the Commission’s Weimar Republic 1919–1933,’’ imported the use of the Exchange, it is likely that Internet Web site (http://www.sec.gov/ from abroad for temporary exhibition the Exchange will lose market share as rules/sro.shtml). Copies of the within the United States, are of cultural a result of the changes if they are submission, all subsequent significance. The objects are imported unattractive to market participants. amendments, all written statements pursuant to loan agreements with the Accordingly, Phlx does not believe with respect to the proposed rule foreign owners or custodians. I also that the proposed rule changes will change that are filed with the determine that the exhibition or display impair the ability of members or Commission, and all written of the exhibit objects at the Los Angeles competing order execution venues to communications relating to the County Museum of Art, Los Angeles, maintain their competitive standing in proposed rule change between the California, from on or about October 4, the financial markets. Commission and any person, other than 2015, until on or about January 18,

6 15 U.S.C. 78f(b)(8). 7 15 U.S.C. 78s(b)(3)(A)(ii). 8 17 CFR 200.30–3(a)(12).

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2016, and at possible additional of Public Diplomacy and Public Affairs Dated: July 13, 2015. exhibitions or venues yet to be in the Office of the Legal Adviser, U.S. Kelly Keiderling, determined, is in the national interest. Department of State (telephone: 202– Principal Deputy Assistant Secretary, Bureau I have ordered that Public Notice of 632–6471; email: section2459@ of Educational and Cultural Affairs, these Determinations be published in state.gov). The mailing address is U.S. Department of State. the Federal Register. Department of State, L/PD, SA–5, Suite [FR Doc. 2015–17727 Filed 7–17–15; 8:45 am] FOR FURTHER INFORMATION CONTACT: For 5H03, Washington, DC 20522–0505. BILLING CODE 4710–05–P further information, including a list of Dated: July 14, 2015. the imported objects, contact the Office Kelly Keiderling, DEPARTMENT OF TRANSPORTATION of Public Diplomacy and Public Affairs Principal Deputy Assistant Secretary, Bureau in the Office of the Legal Adviser, U.S. of Educational and Cultural Affairs, Federal Highway Administration Department of State (telephone: 202– Department of State. 632–6471; email: section2459@ [FR Doc. 2015–17724 Filed 7–17–15; 8:45 am] Notice of Final Federal Agency Actions state.gov). The mailing address is U.S. BILLING CODE 4710–05–P on Proposed Highway in Hawaii Department of State, L/PD, SA–5, Suite 5H03, Washington, DC 20522–0505. AGENCY: Federal Highway Dated: July 13, 2015. DEPARTMENT OF STATE Administration (FHWA), DOT. ACTION: Notice of limitation on claims Kelly Keiderling, [Public Notice: 9197] Principal Deputy Assistant Secretary, Bureau for judicial review of actions by FHWA of Educational and Cultural Affairs, Culturally Significant Objects Imported and other Federal agencies. Department of State. for Exhibition Determinations: SUMMARY: This notice announces actions [FR Doc. 2015–17728 Filed 7–17–15; 8:45 am] ‘‘Strength and Splendor: Wrought Iron taken by FHWA and other Federal BILLING CODE 4710–05–P From the Muse´e Le Secq des agencies that are final within the Tournelles’’ Exhibition meaning of 23 U.S.C. 139(1)(1). The actions relate to the Queen Ka‘ahumanu DEPARTMENT OF STATE SUMMARY: Notice is hereby given of the following determinations: Pursuant to Highway Widening project located in [Public Notice: 9195] the authority vested in me by the Act of North Kona, in the State of Hawai’i. October 19, 1965 (79 Stat. 985; 22 U.S.C. These actions grant licenses, permits, Culturally Significant Objects Imported and approvals for the project. for Exhibition Determinations: 2459), E. O. 12047 of March 27, 1978, the Foreign Affairs Reform and DATES: By this notice, FHWA is advising ‘‘Ancient Egypt Transformed: The the public of final agency actions Middle Kingdom’’ Exhibition Restructuring Act of 1998 (112 Stat. 2681, et seq.; 22 U.S.C. 6501 note, et subject to 23 U.S.C. 139(1). A claim SUMMARY: Notice is hereby given of the seq.), Delegation of Authority No. 234 of seeking judicial review of the Federal following determinations: Pursuant to October 1, 1999, Delegation of Authority agency actions on the listed highway the authority vested in me by the Act of No. 236–3 of August 28, 2000 (and, as project will be barred unless the claim October 19, 1965 (79 Stat. 985; 22 U.S.C. appropriate, Delegation of Authority No. is filed on or before December 17, 2015. 2459), E. O. 12047 of March 27, 1978, 257 of April 15, 2003), I hereby If the Federal law that authorizes the Foreign Affairs Reform and determine that the objects to be judicial review of a claim provides a Restructuring Act of 1998 (112 Stat. included in the exhibition ‘‘Strength time period of less than 150 days for 2681, et seq.; 22 U.S.C. 6501 note, et and Splendor: Wrought Iron from the filing such claim, then that shorter time seq.), Delegation of Authority No. 234 of Muse´e Le Secq des Tournelles,’’ period still applies. October 1, 1999, Delegation of Authority imported from abroad for temporary FOR FURTHER INFORMATION CONTACT: No. 236–3 of August 28, 2000 (and, as exhibition within the United States, are Mayela Sosa, Division Administrator, appropriate, Delegation of Authority No. of cultural significance. The objects are Federal Highway Administration, 300 257 of April 15, 2003), I hereby imported pursuant to a loan agreement Ala Moana Boulevard, Box 50206, determine that the objects to be with the foreign owner or custodian. I Honolulu, Hawaii 96850, Telephone: included in the exhibition ‘‘Ancient also determine that the exhibition or (808) 541–2700; or Raymond J. Egypt Transformed: The Middle display of the exhibit objects at The McCormick, Highways Administrator, Kingdom,’’ imported from abroad for Barnes Foundation, Philadelphia, State of Hawaii Department of temporary exhibition within the United Pennsylvania, from on or about Transportation, 869 Punchbowl Street, States, are of cultural significance. The September 19, 2015, until on or about Honolulu, Hawaii 96813, Telephone: objects are imported pursuant to loan January 4, 2016, and at possible (808) 587–2220; agreements with the foreign owners or additional exhibitions or venues yet to SUPPLEMENTARY INFORMATION: Notice is custodians. I also determine that the be determined, is in the national hereby given that FHWA and other exhibition or display of the exhibit interest. I have ordered that Public Federal agencies have taken final agency objects at The Metropolitan Museum of Notice of these Determinations be actions by issuing licenses, permits, and Art, New York, New York, from on or published in the Federal Register. approvals for the following: In 1996, about October 12, 2015, until on or FOR FURTHER INFORMATION CONTACT: For FHWA and HDOT published the EA to about January 24, 2016, and at possible further information, including a list of widen Queen Ka‘ahumanu Highway additional exhibitions or venues yet to the imported objects, contact the Office from a two lane to four lane facility. The be determined, is in the national of Public Diplomacy and Public Affairs FHWA issued a Finding of No interest. I have ordered that Public in the Office of the Legal Adviser, U.S. Significant Impact on June 10, 1996. Notice of these Determinations be Department of State (telephone: 202– The original project limits extended published in the Federal Register. 632–6471; email: section2459@ from Palani Road to Keahole Airport FOR FURTHER INFORMATION CONTACT: For state.gov). The mailing address is U.S. Access Road, a total project length of 8.0 further information, including a list of Department of State, L/PD, SA–5, Suite miles. However, due to funding the imported objects, contact the Office 5H03, Washington, DC 20522–0505. constraints, the project was split into

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two phases. Phase 1 covered widening 7. Wetlands and Water Resources: FRA requests that OMB authorize the and improvements on Queen Clean Water Act, 33 U.S.C. 1251–1377 collection of information identified by Ka‘ahumanu Highway from Palani Road (Section 404, Section 401, Section 319); July 24, 2015, for a period of 180 days. to Kealakehe Parkway, a distance of 2.8 Coastal Zone Management Act [16 FOR FURTHER INFORMATION CONTACT: A miles, while Phase 2 covers the U.S.C. 1451–1464]; Land and Water copy of this individual ICR, with remaining 5.2 miles from Kealakehe Conservation Fund [16 U.S.C. 4601– applicable supporting documentation, Parkway to Keahole Airport Access 4604]; Safe Drinking Water Act [42 may be obtained by telephoning FRA’s Road. Construction of Phase 1 was U.S.C. 300(f)–300G)(6)]; Rivers and Office of Safety Clearance Officer: completed in 2009. Harbors Act of 1899 [33 U.S.C. 401– Robert Brogan (tel. (202) 493–6292) or These actions by the Federal agencies, 406]; Wetlands Mitigation [23 U.S.C. FRA’s Office of Administration and the laws under which such actions 103(b)(6)(m),133(b)(11)]; Flood Disaster Clearance Officer: Kimberly Toone (tel. were taken, are described in the 1996 Protection Act [42 U.S.C. 4001–4128]. Environmental Assessment (EA), (202) 493–6132) (these numbers are not 9. Executive Orders: E.O. 11990 toll-free); or by contacting Mr. Brogan FONSI, and May 15, 2015, Reevaluation, Protection of Wetlands; E.O. 11988 and and in other documents in the FHWA via facsimile at (202) 493–6216 or Ms. 13690, Floodplain Management; E.O. Toone via facsimile at (202) 493–6497, administrative record. The EA, FONSI, 12898, Federal Actions to Address Reevaluation and other documents in or via email by contacting Mr. Brogan at Environmental Justice in Minority [email protected]; or by contacting the FHWA administrative record are Populations and Low Income available by contacting HDOT or FHWA Ms. Toone at [email protected]. Populations; E.O. 11593 Protection and Comments and questions about the ICR at the addresses provided above. Enhancement of Cultural Resources; This notice applies to all Federal identified below should be directed to E.O. 13007 Indian Sacred Sites; E.O. OMB’s Office of Information and agency decisions on the project as of the 13287 Preserve America; E.O. 13175 issuance date of this notice and all laws Regulatory Affairs, Attn: FRA OMB Consultation and Coordination with Desk Officer. under which such actions were taken, Indian Tribal Governments; E.O. 11514 including but not limited to: Protection and Enhancement of SUPPLEMENTARY INFORMATION: The 1. General: National Environmental Environmental Quality; E.O. 13112 statutory deadline for Positive Train Policy Act [42 U.S.C. 4321–4351]; Invasive Species. Control (PTC) system implementation is Federal-Aid Highway Act [23 U.S.C. 109 December 31, 2015, less than 6 months and 23 U.S.C. 128]. (Catalog of Federal Domestic Assistance away. Congress and FRA are concerned 2. Air: Clean Air Act, as amended [42 Program Number 20.205, Highway Planning and Construction. The regulations that the railroads will not make the U.S.C. 7401–767l(q)]. statutory deadline. To date, the vast 3. Land: Section 4(f) of the implementing Executive Order 12372 regarding intergovernmental consultation on majority of railroads have not Department of Transportation Act of Federal programs and activities apply to this submitted, in accordance with 49 CFR 1966 [49 U.S.C. 303]; Landscaping and program.) 236.1009 and 236.1015, a PTC Safety Scenic Enhancement (Wildflowers) [23 Authority: 23 U.S.C. 139(1)(1). Plan (PTCSP) and have not submitted, U.S.C. 319]. in accordance with 49 CFR 236.1035, a 4. Wildlife: Endangered Species Act Issued on: July 9, 2015. request for testing approval to support a [16 U.S.C. 1531–1544]; Anadromous Mayela Sosa, PTCSP, which is necessary to achieve Fish Conservation Act [16 U.S.C. Division Administrator, Honolulu, HI. PTC System Certification and operate in 757(a)–757(g)]; Fish and Wildlife [FR Doc. 2015–17700 Filed 7–17–15; 8:45 am] revenue service. So that Congress and Coordination Act [16 U.S.C. 661– BILLING CODE 4910–22–P FRA may better understand the status of 667(d)]; Magnuson-Stevenson Fishery each railroad’s implementation efforts, Conservation and Management Act of FRA is seeking accurate and current 1976, as amended [16 U.S.C. 1801 et DEPARTMENT OF TRANSPORTATION information, with periodic updates, seq.]. under its investigative authority 5. Historic and Cultural Resources: Federal Railroad Administration pursuant to 49 U.S.C. 20103, 20107, and Section 106 of the National Historic [Docket No. FRA–2015–007–N–19] 20902, and 49 CFR 236.1009(h). The Preservation Act of 1966, as amended railroads’ responses will help inform [16 U.S.C. 470(f) et seq.]; Archaeological Agency Request for Emergency FRA of the current PTC implementation Resources Protection Act of 1977 [16 Processing of Collection of status. U.S.C. 470(aa)–ll]; Archaeological and Information by the Office of FRA is requesting Emergency Historic Preservation Act [16 U.S.C. Management and Budget 469–469(c)]; Native American Grave processing approval by July 24, 2015, Protection and Repatriation Act [25 AGENCY: Federal Railroad because FRA cannot reasonably comply U.S.C. 3001–3013]. Administration (FRA), United States with normal clearance procedures on 6. Social and Economic: Civil Rights Department of Transportation (USDOT). account of use of normal clearance procedures is reasonably likely to Act of 1964 [42 U.S.C. 2000(d)- ACTION: Notice. 2000(d)(l)]; American Indian Religious disrupt the collection of information. Freedom Act [42 U.S.C. 1996]; Farmland SUMMARY: FRA hereby gives notice that The proposed collection of information Protection Policy Act [7 U.S.C. 4201– it is submitting the following is summarized below. 4209]; the Uniform Relocation Information Collection request (ICR) to Title: Positive Train Control (PTC) Assistance and Real Property the Office of Management and Budget Implementation Status Update Acquisition Policies Act of1970, as (OMB) for emergency processing under Questionnaire. amended [42 U.S.C. 61]. the Paperwork Reduction Act of 1995. Reporting Burden:

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Respondent Total annual Average time Total annual PTC implementation status update universe responses per response burden hours

Questionnaire to be completed by railroads re- 38 Railroads ...... 456 Surveys ...... 10 minutes ...... 76 quired to implement PTC.

Form Number(s): N/A. DATES: Submit comments on or before: • Privacy Note: The Department’s Respondent Universe: 38 Railroads. August 31, 2015. policy for comments received from Frequency of Submission: Monthly. ADDRESSES: Submit your comments members of the public (including Total Estimated Responses: 456 through the Federal eRulemaking Portal comments submitted by mail and Surveys. or via U.S. mail or commercial delivery. commercial delivery) is to make these Total Estimated Annual Burden: 380 We will not accept comments by fax or submissions available for public hours. by email. To ensure that we do not viewing in their entirety on the Federal Status: Emergency Review. receive duplicate copies, please submit eRulemaking Portal at Pursuant to 44 U.S.C. 3507(a) and 5 your comments only one time. In www.regulations.gov. Therefore, CFR 320.5(b), 1320.8(b)(3)(vi), FRA addition, please include the Docket ID commenters should be careful to informs all interested parties that it may and the term ‘‘Marketplace Lending include in their comments only not conduct or sponsor, and a RFI’’ at the top of your comments. information that they wish to make respondent is not required to respond • Federal eRulemaking Portal: You publicly available on the Internet. to, a collection of information unless it are encouraged to submit comments FOR FURTHER INFORMATION CONTACT: For displays a currently valid OMB control electronically through general inquiries, submission process number. www.regulations.gov. Information on questions or any additional information, Authority: 44 U.S.C. 3501–3520. using Regulations.gov, including please email Marketplace_Lending@ Issued in Washington, DC, on July 15, instructions for accessing agency treasury.gov or call (202) 622–1083. All 2015. documents, submitting comments, and responses to this Notice and Request for Rebecca Pennington, viewing the docket, is available on the Information should be submitted via site under a tab titled ‘‘Are you new to http://www.regulations.gov to ensure Chief Financial Officer. the site?’’ Electronic submission of consideration. If you use a [FR Doc. 2015–17689 Filed 7–17–15; 8:45 am] comments allows the commenter telecommunications device for the deaf BILLING CODE 4910–06–P maximum time to prepare and submit a (TDD) or a text telephone (TTY), call the comment, ensures timely receipt, and Federal Relay Service (FRS), toll free, at enables the Department to make them 1–800–877–8339. DEPARTMENT OF THE TREASURY available to the public. SUPPLEMENTARY INFORMATION: • U.S. Mail or Commercial Delivery: If Public Input on Expanding Access to you mail your comments, address them I. Request for Information Credit Through Online Marketplace to Laura Temel, Attention: Marketplace The Treasury Department is seeking Lending Lending RFI, U.S. Department of the public comment through this RFI to AGENCY: Office of the Undersecretary for Treasury, 1500 Pennsylvania Avenue study (i) the various business models of Domestic Finance, Department of the NW., Room 1325, Washington, DC and products offered by online Treasury. 20220. marketplace lenders to small businesses ACTION: Notice and request for and consumers; (ii) the potential for information. loans, deposit advance products, and certain high- online marketplace lending to expand cost installment loans and open-end loans. See access to credit to historically SUMMARY: ‘‘Small Business Advisory Review Panel for underserved market segments; and (iii) Online marketplace lending Potential Rulemakings for Payday, Vehicle Title, refers to the segment of the financial and Similar Loans: Outline of Proposals Under how the financial regulatory framework services industry that uses investment Consideration and Alternatives Considered’’ (March should evolve to support the safe capital and data-driven online platforms 26, 2015), available at http:// growth of this industry. files.consumerfinance.gov/f/201503_cfpb_outline- In particular, the Treasury to lend to small businesses and of-the-proposals-from-small-business-review- consumers. The Treasury Department is panel.pdf. The potential content, effects, and policy Department is interested in responses to seeking public comment through this underpinnings of CFPB rules are outside the scope the following questions. We also seek Request For Information (RFI) on (i) the of this RFI, and comments responding to this RFI any additional information beyond should not address these CFPB rulemakings or their these questions that market participants various business models of and potential effects on marketplace lending to products offered by online marketplace consumers. Thus, the RFI only seeks comment on believe would assist in our efforts to lenders to small businesses and online marketplace lending not covered in the become better informed of the impact of consumers; (ii) the potential for online potential rulemakings, which, under the current online marketplace lending on small framework, would include comments on the businesses, consumers, and the broader marketplace lending to expand access to making or facilitating of a loan by online lender to credit to historically underserved consumers with a term of more than 45 days and economy. market segments; and (iii) how the an annual percentage rate (as defined in 10 U.S.C. Online marketplace lenders may be financial regulatory framework should 987(i)(4)) that (I) does not exceed 36% or (II) subject to regulations promulgated by exceeds 36% provided the loan neither provides for various agencies including, but not evolve to support the safe growth of this repayment directly from a consumer’s account or 12 industry. paycheck nor creates a non-purchase money limited to, the CFPB and the Federal security interest in a vehicle. This framework is Trade Commission. 1 The Consumer Financial Protection Bureau currently under discussion, however, and the CFPB Respondents should provide as much (CFPB) has broad authority governing standards may ultimately change the scope of any proposed detail as possible about the particular that may apply to a variety of consumer loans or final CFPB regulation. issued through this segment, and it has recently 2 The activities on online marketplace lending type of institution, product (e.g., small announced that it is considering proposing rules platforms also may entail the offering of securities business loan, consumer loan), business that would apply to payday loans, vehicle title that are subject to the federal securities laws. model, and practices to which their

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comments apply. Responses to this RFI were unable to secure any credit in the credit risk in their own portfolios and will be made public. prior year.’’ 6 are typically funded by venture capital, The challenge is particularly acute for hedge fund, or family office II. Purpose small business loans of lower value and investments; (2) online platforms Historically, many American shorter terms. More than half of small (formerly known as ‘‘peer-to-peer’’) that, households, small businesses, and businesses that applied for credit in through the sale of securities such as promising new enterprises have faced 2014 sought loans of $100,000 or less. member-dependent notes, obtain the barriers in accessing affordable credit At the same time, more than two thirds financing to enable third parties to fund from traditional lenders. To date, the of businesses with under $1 million in borrowers and, due to the contingent large majority of online marketplace annual revenue that applied for credit nature of the payment obligation on consumer loans have been originated to received less than the full amount that such securities, do not retain credit risk prime or near-prime consumers to they sought and half received none.7 that the borrowers will not pay; and (3) refinance existing debt. Online Technology-enabled credit provisioning bank-affiliated online lenders that are marketplace lending has filled a need offers the potential to reduce transaction funded by a commercial bank, often a for these borrowers by often delivering costs for these products, while regional or community bank, originate lower costs and faster decision times investment capital may offer a new loans and directly assume the credit than traditional lenders. Non-prime source of financing for historically risk. consumers face other challenges in underserved markets. The 2014 Small Additionally, some of these obtaining traditional bank-originated Business Credit Survey indicated that companies have adopted a business credit, particularly due to having thin or almost 20 percent of applicants sought model in which they partner and have no credit files or damaged credit. credit from an online lender. agreements with banks. In these Moreover, high underwriting costs can While online marketplace lending is arrangements, the bank acts as the make it uneconomical to make small- still a very small component of the lender to borrowers that apply on the value consumer loans. For example, it small business and consumer lending platform. The loans are then purchased can cost the same amount to underwrite market, it is a rapidly developing and by a second party — either by an a $300 consumer loan as a $3,000 loan. fast-growing sector that is changing the investor, in which the transaction is Small-value loans to non-prime credit marketplace. In less than a facilitated by the marketplace lender, or consumers thus have often come with decade, online marketplace lending has by the marketplace lender itself, which triple digit annual percentage rates grown to an estimated $12 billion in funds the loan purchase by note sales. (APR). Some online marketplace new loan originations in 2014, the While the loans are not pooled, small lenders, however, are developing majority of which is consumer lending.8 investors can obtain a return by making product structures and underwriting Through this RFI, Treasury is seeking to small investments in a number of notes models that might allow making loans study the potential for online offered by a marketplace lender through to non-prime borrowers at lower rates.3 marketplace lending to expand access to its platforms. With respect to small businesses, a credit and how the financial regulatory Online marketplace lenders share key number of studies have shown that framework should evolve to support the similarities. They provide funding these borrowers are more dependent on safe growth of this industry. through convenient online loan community banks for financing than applications and most have no retail larger firms, which have access to other III. Background branches. They use electronic data forms of finance including public debt Online marketplace lending broadly sources and technology-enabled and equity markets. While larger refers to the segment of the financial underwriting models to automate businesses typically rely on banks for 30 services industry that uses investment processes such as determining a percent of their financing, small capital and data-driven online platforms borrower’s identity and credit risk. businesses receive 90 percent of their to lend either directly or indirectly to These data sources might include financing from banks.4 Small business small businesses and consumers. This traditional underwriting statistics (e.g., lending, however, has high search, segment initially emerged with income and debt obligations), but also transaction, and underwriting costs for companies giving investors the ability to often include other forms of banks relative to potential revenue—it provide financing that would be used to information, including novel data points costs about the same to underwrite a $5 fund individual borrowers through what or combinations. Online marketplace million dollar loan as a $200,000 became known as a ‘‘peer-to-peer’’ lenders typically provide borrowers loan 5—and many small business model. However, it has since evolved to with faster access to credit than the owners report they are unable to access include a diverse set of individual and traditional face-to-face credit the credit needed to grow their business. institutional credit investors who seek application process. Small business According to Federal Reserve survey to provide financing that ultimately is online market place lenders, provide data released in February 2015, ‘‘a used to fund small business and small businesses with lower value (less majority of small firms (under $1 consumer loans of various types to gain than $100,000) and shorter terms. million in annual revenues) and access to additional credit channels and Key Questions startups (under 5 years in business) favorable rates of return. Companies operating in this industry 1. There are many different models for 3 As noted elsewhere, the CFPB is contemplating tend to fall into three general categories: online marketplace lending including issuing a rule that would regulate ‘‘payday’’ and platform lenders (also referred to as related loans, including loans with terms greater (1) Balance sheet lenders that retain than 45 days and an APR greater than 36%, if the ‘‘peer-to-peer’’), balance sheet lenders, loan also provides for repayment directly from a 6 ‘‘The Joint Small Business Credit Survey, 2014,’’ and bank-affiliated lenders. In what consumer’s account or paycheck or includes a non- a collaboration among the Federal Reserve Banks of ways should policymakers be thinking purchase money security interest in a vehicle. Such New York, Atlanta, Cleveland and Philadelphia. about market segmentation; and in what consumer loans are outside the scope of this RFI. Released February 2015. ways do different models raise different 4 ‘‘2011 Economic Report of the President,’’ 7 Ibid. Council of Economic Advisors. The White House. 8 ‘‘Global Marketplace Lending: Disruptive policy or regulatory concerns? 5 ‘‘The Future of Finance,’’ Goldman Sachs Equity Innovation in Financials,’’ Morgan Stanley 2. According to a survey by the Research, March 3, 2015. Research, May 2015. National Small Business Association, 85

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percent of small businesses purchase the borrower’s stated use of proceeds borrowers, but what harms might online supplies online, 83 percent manage affect underwriting for the loan? marketplace lending also present to bank accounts online, 82 percent 7. Describe whether and how consumers and small businesses? What maintain their own Web site, 72 percent marketplace lending relies on services privacy considerations, cybersecurity pay bills online, and 41 percent use or relationships provided by traditional threats, consumer protection concerns, tablets for their businesses.9 Small lending institutions or insured and other related risks might arise out businesses are also increasingly using depository institutions. What steps have of online marketplace lending? Do online bookkeeping and operations been taken toward regulatory existing statutory and regulatory management tools. As such, there is compliance with the new lending model regimes adequately address these issues now an unprecedented amount of by the various industry participants in the context of online marketplace online data available on the activities of throughout the lending process? What lending? these small businesses. What role are issues are raised with online 12. What factors do investors consider electronic data sources playing in marketplace lending across state lines? when: (i) Investing in notes funding enabling marketplace lending? For 8. Describe how marketplace lenders loans being made through online instance, how do they affect manage operational practices such as marketplace lenders, (ii) doing business traditionally manual processes or loan servicing, fraud detection, credit with particular entities, or (iii) evaluation of identity, fraud, and credit reporting, and collections. How are determining the characteristics of the risk for lenders? Are there new these practices handled differently than notes investors are willing to purchase? opportunities or risks arising from these by traditional lending institutions? What are the operational arrangements? data-based processes relative to those What, if anything, do marketplace What are the various methods through used in traditional lending? lenders outsource to third party service which investors may finance online 3. How are online marketplace providers? Are there provisions for platform assets, including purchase of lenders designing their business models back-up services? securities, and what are the advantages and products for different borrower 9. What roles, if any, can the federal and disadvantages of using them? Who segments, such as: government play to facilitate positive are the end investors? How prevalent is • Small business and consumer innovation in lending, such as making the use of financial leverage for borrowers; it easier for borrowers to share their own investors? How is leverage typically • Subprime borrowers; government-held data with lenders? obtained and deployed? • Borrowers who are ‘‘unscoreable’’ What are the competitive advantages 13. What is the current availability of or have no or thin files; and, if any, disadvantages for non-banks secondary liquidity for loan assets Depending on borrower needs (e.g., and banks to participate in and grow in originated in this manner? What are the new small businesses, mature small this market segment? How can advantages and disadvantages of an businesses, consumers seeking to policymakers address any disadvantages active secondary market? Describe the consolidate existing debt, consumers for each? How might changes in the efforts to develop such a market, seeking to take out new credit) and credit environment affect online including any hurdles (regulatory or other segmentations? marketplace lenders? otherwise). Is this market likely to grow 4. Is marketplace lending expanding 10. Under the different models of and what advantages and disadvantages access to credit to historically marketplace lending, to what extent, if might a larger securitization market, underserved market segments? any, should platform or ‘‘peer-to-peer’’ including derivatives and benchmarks, 5. Describe the customer acquisition lenders be required to have ‘‘skin in the present? process for online marketplace lenders. game’’ for the loans they originate or 14. What are other key trends and What kinds of marketing channels are underwrite in order to align interests issues that policymakers should be used to reach new customers? What with investors who have acquired debt monitoring as this market continues to kinds of partnerships do online of the marketplace lenders through the develop? marketplace lenders have with platforms? Under the different models, Guidance for Submitting Documents: traditional financial institutions, is there pooling of loans that raise issues We ask that each respondent include the community development financial of alignment with investors in the name and address of his or her institutions (CDFIs), or other types of lenders’ debt obligations? How would institution or affiliation, and the name, businesses to reach new customers? the concept of risk retention apply in a title, mailing and email addresses, and 6. How are borrowers assessed for non-securitization context for the telephone number of a contact person their creditworthiness and repayment different entities in the distribution for his or her institution or affiliation, if ability? How accurate are these models chain, including those in which there is any. no pooling of loans? Should this in predicting credit risk? How does the Dated: July, 13, 2015. assessment of small business borrowers concept of ‘‘risk retention’’ be the same David G. Clunie, differ from consumer borrowers? Does for other types of syndicated or participated loans? Executive Secretary, 9 ‘‘2013 Small Business Technology Survey,’’ 11. Marketplace lending potentially [FR Doc. 2015–17644 Filed 7–17–15; 8:45 am] National Small Business Association. offers significant benefits and value to BILLING CODE 4810–25–P

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Part II

Environmental Protection Agency

40 CFR Part 82 Protection of Stratospheric Ozone: Change of Listing Status for Certain Substitutes Under the Significant New Alternatives Policy Program; Final Rule

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ENVIRONMENTAL PROTECTION the telephone number for the Air and 1. Background AGENCY Radiation Docket is (202) 566–1742. 2. What is EPA finalizing regarding MVAC systems for newly manufactured light- FOR FURTHER INFORMATION CONTACT: 40 CFR Part 82 duty motor vehicles? Margaret Sheppard, Stratospheric (a) HFC–134a Protection Division, Office of (b) Refrigerant Blends [EPA–HQ–OAR–2014–0198; FRL–9926–55– Atmospheric Programs, Mail Code OAR] 3. MVAC Servicing 6205J, Environmental Protection 4. Would this action affect EPA’s LD GHG RIN 2060–AS18 Agency, 1200 Pennsylvania Avenue Rule? NW., Washington, DC 20460; telephone 5. How will the change of status apply to Protection of Stratospheric Ozone: number (202) 343–9163; fax number exports of MVAC systems? Change of Listing Status for Certain (202) 343–2338, email address: (a) SNAP Interpretation Substitutes Under the Significant New [email protected]. Notices (b) Narrowed Use Limit for MVAC and rulemakings under EPA’s 6. How is EPA responding to comments Alternatives Policy Program concerning this end-use? Significant New Alternatives Policy (a) Timeline AGENCY: Environmental Protection (SNAP) program are available on EPA’s Agency (EPA). (b) Interaction With EPA’s LD GHG Rule Stratospheric Ozone Web site at (c) Environmental Impacts ACTION: Final rule. www.epa.gov/ozone/snap/regs. (d) Cost Impacts of Rule SUPPLEMENTARY INFORMATION: (e) Servicing and Retrofits SUMMARY: This action changes the status (f) Refrigerant Blends for Retrofits of from acceptable to unacceptable; Table of Contents MVAC Systems acceptable, subject to use conditions; or I. General Information (g) Use Conditions for HFC–134a acceptable, subject to narrowed use A. Executive Summary (h) Flexibility for Exports limits for a number of substitutes, B. Does this action apply to me? C. Retail Food Refrigeration and Vending pursuant to the U.S. Environmental C. What acronyms and abbreviations are Machines Protection Agency’s Significant New used in the preamble? 1. Background Alternatives Policy program. We make II. How does the SNAP program work? (a) Overview of SNAP End-Uses, End-Use these changes based on information A. What are the statutory requirements and Categories, and Commonly-Used authority for the SNAP program? Refrigerants showing that other substitutes are B. What are EPA’s regulations (b) Terms and Coverage available for the same uses that pose implementing CAA section 612? (c) The Terms ‘‘New’’ and ‘‘Retrofit’’ and lower risk overall to human health and C. How do the regulations for the SNAP How They Apply to Servicing the environment. Specifically, this program work? 2. What is EPA finalizing for retail food action changes the listing status for D. What are the guiding principles of the refrigeration (supermarket systems)? certain hydrofluorocarbons in various SNAP program? (a) New Supermarket Systems end-uses in the aerosols, refrigeration E. What are EPA’s criteria for evaluating (1) What other alternatives does EPA find and air conditioning, and foam blowing substitutes under the SNAP program? pose lower overall risk to human health F. How are SNAP determinations updated? and the environment? sectors. This action also changes the G. What does EPA consider in deciding status from acceptable to unacceptable (2) When will the status change? whether to modify the listing status of an (b) Retrofit Supermarket Systems for certain hydrochlorofluorocarbons alternative? (1) What other alternatives does EPA find being phased out of production under H. Where can I get additional information pose lower overall risk to human health the Montreal Protocol on Substances about the SNAP program? and the environment? that Deplete the Ozone Layer and III. What actions and information related to (2) When will the status change? section 605(a) of the Clean Air Act. greenhouse gases have bearing on this (c) How is EPA responding to comments on final action to modify prior SNAP retail food refrigeration (supermarket DATES: This rule is effective on August determinations? 19, 2015. systems)? IV. What petitions has EPA received 3. What is EPA finalizing for retail food ADDRESSES: EPA has established a requesting a change in listing status for refrigeration (remote condensing units)? HFCs? docket for this action under Docket ID (a) New Remote Condensing Units A. Summary of Petitions No. EPA–HQ–OAR–2014–0198. All (1) What other alternatives does EPA find B. How This Action Relates to the Climate pose lower overall risk to human health documents in the docket are listed in Action Plan and Petitions and the environment? the index. Although listed in the index, V. What is EPA’s final action concerning the some information is not publicly HFCs addressed in this rule? (2) When will the status change? available, i.e., Confidential Business A. Aerosols (b) Retrofit Remote Condensing Units Information (CBI) or other information 1. Background (1) What other alternatives does EPA find whose disclosure is restricted by statute. 2. What is EPA finalizing concerning pose lower overall risk to human health aerosols? and the environment? Certain other material, such as (2) When will the status change? copyrighted material, is not placed in (a) What other alternatives are available? (1) Aerosols With Flammability and Vapor (c) How is EPA responding to comments on the electronic docket and will be Pressure Constraints retail food refrigeration (remote publicly available only in hard copy (2) Aerosols for Specific Medical Uses condensing units)? form. Publicly available docket (b) When will the listings change? 4. What is EPA finalizing for retail food materials are available either 3. How is EPA responding to comments refrigeration (stand-alone equipment)? electronically or in hard copy at the Air about this end-use? (a) New Stand-Alone Equipment and Radiation Docket, EPA/DC, EPA (a) Timeline (1) What other alternatives does EPA find West, Room 3334, 1301 Constitution (b) Sell-Through period pose lower overall risk to human health Avenue NW., Washington, DC. The (c) Use conditions and the environment? (d) HFC Consumption and Climate Impact (2) When will the status change? Public Reading Room is open from 8:30 of Aerosols (b) Retrofit Stand-Alone Equipment a.m. to 4:30 p.m., Monday through (e) Small Business Impacts (1) What other alternatives does EPA find Friday, excluding legal holidays. The (f) Imports pose lower overall risk to human health telephone number for the Public B. MVAC Systems for Newly Manufactured and the environment? Reading Room is (202) 566–1744, and Light-Duty Motor Vehicles (2) When will the status change?

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(c) How is EPA responding to comments on F. Other Comments Global warming potential (GWP) is retail food refrigeration (stand-alone VIII. Additional Analyses one of several criteria EPA considers in equipment)? IX. Statutory and Executive Order Reviews the overall evaluation of the alternatives 5. What is EPA finalizing for vending A. Executive Order 12866: Regulatory under the SNAP program. The machines? Planning and Review and Executive (a) New Vending Machines Order 13563: Improving Regulation and President’s June 2013 Climate Action (1) What other alternatives does EPA find Regulatory Review Plan (CAP) states that, ‘‘to reduce pose lower overall risk to human health B. Paperwork Reduction Act emissions of HFCs, the United States and the environment? C. Regulatory Flexibility Act can and will lead both through (2) When will the status change? D. Unfunded Mandates Reform Act international diplomacy as well as (b) Retrofit Vending Machines E. Executive Order 13132: Federalism domestic actions.’’ Furthermore, the (1) What other alternatives does EPA find F. Executive Order 13175: Consultation CAP states that EPA will ‘‘use its pose lower overall risk to human health and Coordination With Indian Tribal authority through the Significant New and the environment? Governments Alternatives Policy Program to (2) When will the status change? G. Executive Order 13045: Protection of (c) How is EPA responding to comments on Children From Environmental Health encourage private sector investment in vending machines? and Safety Risks low-emissions technology by identifying 6. General Comments on the Retail Food H. Executive Order 13211: Actions That and approving climate-friendly Refrigeration and Vending Machine End- Significantly Affect Energy Supply, chemicals while prohibiting certain uses Uses Distribution, or Use of the most harmful chemical (a) Specific Numerical Limits for GWP I. National Technology Transfer and alternatives.’’ In our first effort to take (b) Comments and Responses Concerning Advancement Act a broader look at the SNAP lists, we Small Businesses J. Executive Order 12898: Federal Actions have focused on those listed substitutes (c) Suggestion Regarding Education and To Address Environmental Justice in that have a high GWP relative to other Training Minority Populations and Low-Income 7. Energy Efficiency Considerations Populations alternatives in specific end-uses. In D. Foam Blowing Agents K. Congressional Review Act (CRA) determining whether to change the 1. Background X. References status of these substitutes for particular 2. What is EPA finalizing for foam blowing end-uses, we performed a full agents? I. General Information comparative risk analysis, based on our (a) What other alternatives does EPA find A. Executive Summary criteria for review, with other available pose lower overall risk to human health alternatives also listed as acceptable for Under section 612 of the Clean Air and the environment? these end-uses. (b) When will the status change? Act (CAA), EPA reviews substitutes In an August 6, 2014, Federal Register (c) Military and Space- and Aeronautics- within a comparative risk framework. Notice of Proposed Rulemaking (79 FR Related Applications More specifically, section 612 provides 46126), the U.S. Environmental (d) How will the requirements apply to that EPA must prohibit the use of a Protection Agency (hereafter referred to exports and imports? substitute where EPA has determined 3. How is EPA responding to comments as EPA or the Agency) proposed to that there are other available substitutes change the status of certain substitutes 1 concerning foam blowing end-uses? that pose less overall risk to human (a) Timeline that at that time were listed as (b) Foam Blowing Agents Changing Status health and the environment. Thus, acceptable under the SNAP program. and Other Alternatives EPA’s Significant New Alternatives After reviewing public comments and (c) Environmental and Energy Impacts of Policy (SNAP) program, which available information, in today’s action, Foam Blowing Agents implements section 612, does not EPA is modifying the listings from (d) Cost Impacts provide a static list of alternatives but acceptable to unacceptable; acceptable, VI. What is EPA finalizing for the HCFCs instead evolves the list as the EPA subject to use conditions; or acceptable, addressed in this rule? makes decisions informed by our overall A. What did EPA propose for HCFCs and subject to narrowed use limits for understanding of the environmental and certain hydrofluorocarbons (HFCs) and what is being finalized in this rule? human health impacts as well as our B. How is EPA responding to public HFC blends in various end-uses in the comments concerning HCFCs? current knowledge about available aerosols, foam blowing, and VII. How is EPA responding to other public substitutes. In the more than twenty refrigeration and air conditioning comments? years since the initial SNAP rule was sectors where other alternatives are A. Authority promulgated, EPA has modified the available or potentially available that 1. General Authority SNAP lists many times, most often by pose lower overall risk to human health 2. Second Generation Substitutes expanding the list of acceptable and the environment. Per the guiding 3. GWP Considerations substitutes, but in some cases by principles of the SNAP program, this 4. Takings prohibiting the use of substitutes action does not specify that any HFCs 5. Montreal Protocol/International previously listed as acceptable. Where 6. Absence of Petitions are unacceptable across all sectors and 7. Application of Criteria for Review of EPA is determining whether to add a end-uses. Instead, in all cases, EPA Alternatives new substitute to the list, EPA compares considered the intersection between the B. Cost and Economic Impacts of Proposed the risk posed by that new substitute to specific HFC or HFC blend and the Status Changes the risks posed by other alternatives on particular end-use and the availability 1. Costs of Proposed Rule the list and determines whether that of substitutes for those particular end- 2. EPA’s Cost Analysis and Small Business specific new substitute poses more risk uses. EPA is also not specifying that, for Impacts Screening Analysis than already-listed alternatives for the any sector, the only acceptable C. Environmental Effects of Proposed same use. As the lists have expanded, substitutes are HFC-free. EPA recognizes Status Changes EPA has not reviewed the lists in a 1. General Comments that both fluorinated (e.g., HFCs, 2. EPA’s Benefits Analysis broader manner to determine whether hydrofluoroolefins (HFOs)) and non- 3. Energy Efficiency substitutes added to the lists early in the fluorinated (e.g., hydrocarbons (HCs) 4. The Climate Action Plan program pose more risk than substitutes D. Potential Exemptions that have more recently been added. 1 The terms ‘‘substitutes’’ and ‘‘alternatives’’ are E. Interactions With Other Rules EPA is now beginning this process. used interchangeably.

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and carbon dioxide (CO2)) substitutes Æ duster sprays specifically for • New remote condensing units: may pose lower overall risk to human removal of dust from photographic HFC–227ea, R–404A, R–407B, R–421B, health and the environment, depending negatives, semiconductor chips, and R–422A, R–422C, R–422D, R–428A, R– on the particular use. Instead, consistent specimens under electron microscopes 434A, and R–507A as of January 1, 2018 with CAA section 612 as we have or for use on energized electrical • Retrofitted vending machines: R– historically interpreted it under the equipment; 404A and R–507A as of July 20, 2016 SNAP program, EPA is making these Æ adhesives and sealants in large • New vending machines: FOR12A, modifications based on our evaluation canisters; FOR12B, HFC–134a, KDD6, R–125/290/ Æ of the substitutes addressed in this lubricants and freeze sprays for 134a/600a (55.0/1.0/42.5/1.5), R–404A, action using the SNAP criteria for electrical equipment or electronics; R–407C, R–410A, R–410B, R–417A, R– Æ sprays for aircraft maintenance; 421A, R–422B, R–422C, R–422D, R– evaluation and considering the current Æ suite of other available and potentially pesticides for use near electrical 426A, R–437A, R–438A, R–507A, RS–24 available substitutes. wires or in aircraft, in total release (2002 formulation), and SP34E as of insecticide foggers, or in certified January 1, 2019 On that basis, EPA is modifying the • following listings by sector and end-use organic use pesticides for which EPA Retrofitted stand-alone retail food has specifically disallowed all other as of the dates indicated. EPA will refrigeration equipment: R–404A and R– lower-GWP propellants; continue to monitor the development 507A as of July 20, 2016 Æ mold release agents and mold • New stand-alone medium- and deployment of other alternatives as cleaners; temperature units with a compressor well as their uptake by industries Æ lubricants and cleaners for capacity below 2,200 Btu/hr and not affected by today’s action. If EPA spinnerettes for synthetic fabrics; containing a flooded evaporator: receives new information indicating that Æ document preservation sprays; FOR12A, FOR12B, HFC–134a, HFC– other alternatives will not be available Æ MDIs approved by the FDA for 227ea, KDD6, R–125/290/134a/600a by the change of status dates specified, medical purposes; (55.0/1.0/42.5/1.5), R–404A, R–407A, EPA may propose further action to Æ wound care sprays; Æ R–407B, R–407C, R–407F, R–410A, R– adjust the relevant dates. topical coolant sprays for pain 410B, R–417A, R–421A, R–421B, R– (1) Aerosols relief; and 422A, R–422B, R–422C, R–422D, R– • Æ products for removing bandage EPA is listing HFC–125 as 424A, R–426A, R–428A, R–434A, R– unacceptable for use as an aerosol adhesives from skin. (2) Refrigeration and air conditioning 437A, R–438A, R–507A, RS–24 (2002 propellant as of January 1, 2016. formulation), RS–44 (2003 formulation), • EPA is listing HFC–134a, HFC– sector; Motor vehicle air conditioning (MVAC) systems for newly SP34E, and THR–03 as of January 1, 227ea, and blends of HFC–134a and 2019 HFC–227ea as unacceptable for use as manufactured light-duty vehicles • EPA is listing HFC–134a as New stand-alone medium- aerosol propellants as of July 20, 2016, temperature units with a compressor except for those uses specifically listed unacceptable for newly manufactured light-duty motor vehicles beginning in capacity equal to or greater than 2,200 as acceptable, subject to use conditions. Btu/hr and stand-alone medium- • Model Year (MY) 2021 except as EPA is listing HFC–227ea and temperature units containing a flooded blends of HFC–134a and HFC–227ea as allowed under a narrowed use limit for use in newly manufactured light-duty evaporator: FOR12A, FOR12B, HFC– acceptable, subject to use conditions, as 134a, HFC–227ea, KDD6, R–125/290/ of July 20, 2016, for use in metered dose vehicles destined for use in countries that do not have infrastructure in place 134a/600a (55.0/1.0/42.5/1.5), R–404A, inhalers (MDIs) approved by the U.S. R–407A, R–407B, R–407C, R–407F, R– Food and Drug Administration (FDA). for servicing with other acceptable refrigerants. This narrowed use limit 410A, R–410B, R–417A, R–421A, R– • EPA is listing HFC–134a as will be in place through MY 2025. 421B, R–422A, R–422B, R–422C, R– acceptable, subject to use conditions, as Beginning in MY 2026, HFC–134a will 422D, R–424A, R–426A, R–428A, R– of July 20, 2016, until January 1, 2018, be unacceptable for use in all newly 434A, R–437A, R–438A, R–507A, RS–24 for the following specific uses: manufactured light-duty vehicles. EPA (2002 formulation), RS–44 (2003 Æ products for which new is also listing the use of certain formulation), SP34E, and THR–03 as of formulations require federal refrigerant blends as unacceptable in January 1, 2020 governmental review, including: EPA • newly manufactured light-duty motor New stand-alone low-temperature pesticide registration, military or space vehicles starting with MY 2017. units: HFC–227ea, KDD6, R–125/290/ agency specifications, or FDA approval (3) Refrigeration and air conditioning 134a/600a (55.0/1.0/42.5/1.5), R–404A, (aside from MDIs); and R–407A, R–407B, R–407C, R–407F, R– Æ sector; Retail food refrigeration and products for smoke detector vending machines 410A, R–410B, R–417A, R–421A, R– functionality testing. EPA is listing a number of refrigerants 421B, R–422A, R–422B, R–422C, R– • EPA is listing HFC–134a as as unacceptable in a number of retail 422D, R–424A, R–428A, R–434A, R– acceptable, subject to use conditions, as food refrigeration categories and in the 437A, R–438A, R–507A, and RS–44 of July 20, 2016, for the following vending machines end-use, as follows: (2003 formulation) as of January 1, 2020 specific uses: • Retrofitted supermarket systems: R– We are also providing clarification on Æ cleaning products for removal of 404A, R–407B, R–421B, R–422A, R– several questions identified during the grease, flux and other soils from 422C, R–422D, R–428A, R–434A, and comment period. Specifically, we are electrical equipment or electronics; R–507A as of July 20, 2016 providing clarification of the terms we Æ refrigerant flushes; • New supermarket systems: HFC– are using for the various end-use Æ products for sensitivity testing of 227ea, R–404A, R–407B, R–421B, R– categories covered by this rule, smoke detectors; 422A, R–422C, R–422D, R–428A, R– including ‘‘supermarket systems,’’ Æ sprays containing corrosion 434A, and R–507A as of January 1, 2017 ‘‘remote condensing units,’’ and ‘‘stand- preventive compounds used in the • Retrofitted remote condensing alone equipment.’’ We are also maintenance of aircraft, electrical units: R–404A, R–407B, R–421B, R– providing clarification on certain types equipment or electronics, or military 422A, R–422C, R–422D, R–428A, R– of equipment that do not fall within the equipment; 434A, and R–507A as of July 20, 2016 categories and end-uses covered by this

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rule, including blast chillers, certain ice HFC–365mfc, and blends thereof; including information provided during makers, very-low temperature Formacel TI, Formacel B, and Formacel the public comment period, and refrigeration equipment, and equipment Z–6, as of January 1, 2021 information claimed as confidential and that dispenses chilled beverage or food • Polyolefin: HFC–134a, HFC–245fa, provided during meetings, regarding (e.g., soft-serve ice cream) via a nozzle. HFC–365mfc, and blends thereof; technical challenges that may affect the Finally, we are also providing Formacel TI, and Formacel Z–6, as of time at which the alternatives can be clarification regarding our use of the January 1, 2020 used safely and used consistent with • terms ‘‘new’’ and ‘‘retrofit’’ and how Phenolic insulation board and other requirements such as testing and those terms relate to service of existing bunstock: HFC–143a, HFC–134a, HFC– code compliance obligations. We equipment. 245fa, HFC–365mfc, and blends thereof; grouped comments together and (4) Foams as of January 1, 2017 responded to the issues raised by the • Rigid PU marine flotation foam: EPA is listing a number of foam comments in the sections that follow, or HFC–134a, HFC–245fa, HFC–365mfc blowing agents unacceptable in each in a separate response to comments foams end-use excluding rigid PU spray and blends thereof; Formacel TI, and Formacel Z–6, as of January 1, 2020 document which is included in the foam, except as allowed under a docket for this rule (EPA, 2015a). This narrowed use limit for military or space- While EPA proposed and requested comments on interpreting the SNAP final rule reflects some changes to our and aeronautics-related applications. proposal, based on information and data For military or space- and aeronautics- unacceptability determinations to apply received during the public comment related applications, we are changing to the import of foam products that period. the listing status to acceptable, subject retain the blowing agents (i.e., closed to a narrowed use limit, as of the status cell foams), EPA is not finalizing that The sections that follow describe change date for the remainder of each change in this rulemaking. EPA’s final action for each of the three end-use (January 1 of 2017, 2019, 2020 (5) Hydrochlorofluorocarbons sectors covered in this rulemaking— or 2021) and then to unacceptable as of (HCFCs) aerosols; foam blowing; and January 1, 2022. We are not taking final As proposed, EPA is also modifying refrigeration and air-conditioning, action on rigid PU spray foam at this the listings for HCFC–141b, HCFC– including commercial refrigeration and time. The unacceptable listing for all 142b, and HCFC–22, as well as blends motor vehicle air conditioning. For the other end-uses is as follows: that contain these substances in end-uses addressed within each sector • Rigid polyurethane (PU) appliance aerosols, foam blowing agents, fire we explain the change of status foam: HFC–134a, HFC–245fa, HFC– suppression and explosion protection determination and the dates when the 365mfc and blends thereof; Formacel TI, agents, sterilants, and adhesives, change of status will apply. EPA has and Formacel Z–6, as of January 1, 2020 coatings and inks. These modifications updated documentation for this rule • Rigid PU commercial refrigeration align the SNAP listings with other parts including market characterizations, and sandwich panels: HFC–134a, HFC– of the stratospheric protection program, analyses of costs associated with sector 245fa, HFC–365mfc, and blends thereof; specifically section 605 and the transitions, estimated benefits Formacel TI, and Formacel Z–6, as of implementing regulations at 40 CFR part associated with the transition to other January 1, 2020 82 subpart A and section 610 and the alternatives, and potential small • Rigid PU slabstock and other: HFC– implementing regulations at 40 CFR part business impacts.23456789101112 These 134a, HFC–245fa, HFC–365mfc and 82 subpart C. The modified listings will documents are available in the docket. blends thereof; Formacel TI, and apply 60 days following publication of EPA provided separate market Formacel Z–6, as of January 1, 2019 this final rule. characterizations by sector for the • (6) Overview of public comments Rigid PU and polyisocyanurate proposed rule but is providing a single laminated boardstock: HFC–134a, HFC– EPA received over 7,500 comments on the proposed rule. EPA requested and document consolidating this 245fa, HFC–365mfc and blends thereof; information, and updated to reflect as of January 1, 2017 received comments on the proposed • listing decisions as well as the proposed information received during the public Flexible PU: HFC–134a, HFC– comment period, for this final action. 245fa, HFC–365mfc, and blends thereof; change of status dates. As noted in response to comments throughout this The emissions avoided from this final as of January 1, 2017 rule are estimated to be 26 to 31 million • Integral skin PU: HFC–134a, HFC– document, the decision on modifying metric tons of carbon dioxide equivalent 245fa, HFC–365mfc, and blends thereof; each listing is based on the SNAP (MMTCO eq) in 2020. The avoided Formacel TI, and Formacel Z–6, as of program’s comparative risk framework. 2 emissions are estimated to be 54 to 64 January 1, 2017 This includes information concerning • Polystyrene extruded sheet: HFC– whether there are alternatives available MMTCO2eq in 2025 and 78 to 101 134a, HFC–245fa, HFC–365mfc, and with lower overall risk to human health MMTCO2eq in 2030 (EPA, 2015b). blends thereof; Formacel TI, and and the environment for the end-uses B. Does this action apply to me? Formacel Z–6, as of January 1, 2017 considered. As part of our consideration • Polystyrene extruded boardstock of the availability of those alternatives, Potential entities that may be affected and billet (XPS): HFC–134a, HFC–245fa, we considered all available information, by this final rule include:

2 ICF, 2014a. Market Characterization of the U.S. 6 ICF, 2014f. Economic Impact Screening Analysis Foams Industry, U.S. Aerosols Industry, and U.S. Aerosols Industry. May 2014. for Regulatory Options To Change Listing Status of Commercial Refrigeration Industry. July 2015 3 ICF, 2014b. Market Characterization of the U.S. High-GWP Alternatives. June 2014. 10 ICF, 2015b. Economic Impact Screening Foams Industry. May 2014. 7 EPA, 2014a. Climate Benefits of the SNAP Analysis for Regulatory Changes to the Listing Status of High-GWP Alternatives—Revised. July 4 ICF, 2014c. Market Characterization of the U.S. Program Status Change Rule. June 2014. 2015. Commercial Refrigeration Industry. May 2014. 8 ICF, 2014g. Revised Preliminary Cost Analysis 11 EPA, 2015b. Climate Benefits of the SNAP 5 ICF, 2014d. Market Characterization of the for Regulatory Options To Change Listing Status of Program Status Change Rule. July 2015. High-GWP Alternatives. June 2014. Motor Vehicle Air Conditioning Industry. May 12 ICF, 2015c. Revised Cost Analysis for 2014. 9 ICF, 2015a. Market Characterization of the U.S. Regulatory Changes to the Listing Status of High- Motor Vehicle Air Conditioning Industry, U.S. GWP Alternatives. July 2015.

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TABLE 1—POTENTIALLY REGULATED ENTITIES BY NORTH AMERICAN INDUSTRIAL CLASSIFICATION SYSTEM (NAICS) CODE

Category NAICS Code Description of regulated entities

Industry ...... 238220 Plumbing, Heating, and Air Conditioning Contractors. Industry ...... 324191 Petroleum Lubricating Oil and Grease Manufacturing. Industry ...... 325199 All Other Basic Organic Chemical Manufacturing. Industry ...... 325412 Pharmaceutical Preparation Manufacturing. Industry ...... 325510 Paint and Coating Manufacturing. Industry ...... 325520 Adhesive Manufacturing. Industry ...... 325612 Polishes and Other Sanitation Goods. Industry ...... 325620 Toilet Preparation Manufacturing. Industry ...... 325998 All Other Miscellaneous Chemical Product and Preparation Manufacturing. Industry ...... 326140 Polystyrene Foam Product Manufacturing. Industry ...... 326150 Urethane and Other Foam Product (except Polystyrene) Manufacturing. Industry ...... 333415 Air Conditioning and Warm Air Heating Equipment and Commercial and Industrial Refrigeration Equipment Manufacturing. Industry ...... 336211 Motor Vehicle Body Manufacturing. Industry ...... 3363 Motor Vehicle Parts Manufacturing. Industry ...... 336611 Ship Building and Repairing. Industry ...... 336612 Boat Building. Industry ...... 339113 Surgical Appliance and Supplies Manufacturing. Retail ...... 423620 Household Appliances, Electric Housewares, and Consumer Electronics Merchant Wholesalers. Retail ...... 423740 Refrigeration Equipment and Supplies Merchant Wholesalers. Retail ...... 44511 Supermarkets and Other Grocery (except Convenience) Stores. Retail ...... 445110 Supermarkets and Other Grocery (except Convenience) Stores. Retail ...... 445120 Convenience Stores. Retail ...... 44521 Meat Markets. Retail ...... 44522 Fish and Seafood Markets. Retail ...... 44523 Fruit and Vegetable Markets. Retail ...... 445291 Baked Goods Stores. Retail ...... 445292 Confectionary and Nut Stores. Retail ...... 445299 All Other Specialty Food Stores. Retail ...... 4453 Beer, Wine, and Liquor Stores. Retail ...... 446110 Pharmacies and Drug Stores. Retail ...... 44711 Gasoline Stations with Convenience Stores. Retail ...... 452910 Warehouse Clubs and Supercenters. Retail ...... 452990 All Other General Merchandise Stores. Services ...... 72111 Hotels (except Casino Hotels) and Motels. Services ...... 72112 Casino Hotels. Retail ...... 72241 Drinking Places (Alcoholic Beverages). Retail ...... 722513 Limited-Service Restaurants. Retail ...... 722514 Cafeterias, Grill Buffets, and Buffets. Retail ...... 722515 Snack and Nonalcoholic Beverage Bars

This table is not intended to be The Alliance—Alliance for Responsible EIA—Environmental Investigation Agency- exhaustive, but rather a guide regarding Atmospheric Policy US entities likely to use the substitute ARPI—Automotive Refrigeration Products EO—Executive Order whose use is regulated by this action. If Institute EPA—United States Environmental Protection Agency you have any questions about whether ASHRAE—American Society of Heating, Refrigerating and Air-Conditioning EU—European Union this action applies to a particular entity, FDA—United States Food and Drug consult the person listed in the above Engineers CAA—Clean Air Act Administration FOR FURTHER INFORMATION section, CAP—Climate Action Plan FM—Factory Mutual CONTACT. CARB—California Air Resource Board FMI—Food Marketing Institute FR—Federal Register CAS Reg. No.—Chemical Abstracts Service C. What acronyms and abbreviations are GHG—Greenhouse Gas Registry Identification Number used in the preamble? Global Automakers—Association of Global CBI—Confidential Business Information Automakers Below is a list of acronyms and CFC—Chlorofluorocarbon abbreviations used in the preamble of GWP—Global Warming Potential CFESA—Commercial Food Equipment HC—Hydrocarbon this document: Service Association HCFC—Hydrochlorofluorocarbon AAM—Alliance of Automobile CFR—Code of Federal Regulations HFC—Hydrofluorocarbon Manufacturers CH4—Methane HFO—Hydrofluoroolefin ACGIH—American Conference of CO2—Carbon Dioxide ICF—ICF International, Inc. Governmental Industrial Hygienists CO2eq—Carbon dioxide equivalent IGSD—Institute for Governance and AGC—Asahi Glass Company CRA—Congressional Review Act Sustainable Development AHAM—Association of Home Appliance CSPA—Consumer Specialty Products IPAC—International Pharmaceutical Aerosol Manufacturers Association Consortium AHRI— Air-Conditioning, Heating, and DME—Dimethyl ether IPCC—Intergovernmental Panel on Climate Refrigeration Institute DoD—United States Department of Defense Change AIHA—American Industrial Hygiene DOE—United States Department of Energy LCCP— Life Cycle Climate Performance Association DX—Direct expansion LD GHG—Light-Duty Greenhouse Gas

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MAC Directive—Directive on Mobile Air WEEL—Workplace Environmental Exposure producer’s unpublished health and Conditioning Limit safety studies on such substitutes. MDI—Metered Dose Inhaler XPS—Extruded Polystyrene Boardstock and Mexichem—Mexichem Fluor, Inc. Billet 5. Outreach MMTCO2eq—Million Metric Tons of Carbon XPSA—Extruded Polystyrene Association Section 612(b)(1) states that the Dioxide equivalent MVAC—Motor vehicle air conditioning II. How does the SNAP program work? Administrator shall seek to maximize the use of federal research facilities and MY—Model Year A. What are the statutory requirements N —Nitrogen resources to assist users of class I and 2 and authority for the SNAP program? N2O—Nitrous Oxide II substances in identifying and NAA—National Aerosol Association CAA section 612 requires EPA to developing alternatives to the use of NADA—National Automobile Dealers develop a program for evaluating such substances in key commercial Association alternatives to ozone-depleting applications. NAICS—North American Industrial substances (ODS). This program is Classification System 6. Clearinghouse known as the SNAP program. The major NAFEM—North American Association of Section 612(b)(4) requires the Agency Food Equipment Manufacturers provisions of section 612 are: to set up a public clearinghouse of NAM—National Association of 1. Rulemaking Manufacturers alternative chemicals, product NAMA—National Automatic Merchandising Section 612(c) requires EPA to substitutes, and alternative Association promulgate rules making it unlawful to manufacturing processes that are NASA—National Aeronautics and Space replace any class I (chlorofluorocarbon, available for products and Administration halon, carbon tetrachloride, methyl manufacturing processes which use NFPA—National Fire Protection Association chloroform, methyl bromide, class I and II substances. NHTSA—National Highway Traffic Safety hydrobromofluorocarbon, and Administration B. What are EPA’s regulations chlorobromomethane) or class II (HCFC) NIOSH—United States National Institute for implementing CAA section 612? substance with any substitute that the Occupational Safety and Health On March 18, 1994, EPA published NMMA—National Marine Manufacturers Administrator determines may present Association adverse effects to human health or the the initial SNAP rule (59 FR 13044) NPRM—Notice of proposed rulemaking environment where the Administrator which established the process for NRA—National Restaurant Association has identified an alternative that (1) administering the SNAP program and NRDC—Natural Resources Defense Council reduces the overall risk to human health issued EPA’s first lists identifying NSF—National Sanitation Foundation and the environment and (2) is currently acceptable and unacceptable substitutes NTTAA—National Technology Transfer and or potentially available. in major industrial use sectors (40 CFR Advancement Act part 82, subpart G). These sectors are the OEM—Original Equipment Manufacturer 2. Listing of Unacceptable/Acceptable following: Refrigeration and air ODP—Ozone Depletion Potential Substitutes conditioning; foam blowing; solvents ODS—Ozone-depleting Substance OMB—United States Office of Management Section 612(c) requires EPA to cleaning; fire suppression and explosion and Budget publish a list of the substitutes that it protection; sterilants; aerosols; OSHA—United States Occupational Safety finds to be unacceptable for specific adhesives, coatings and inks; and and Health Administration uses and to publish a corresponding list tobacco expansion. These sectors PEL—Permissible Exposure Limit of acceptable substitutes for specific comprise the principal industrial sectors PFC—Perfluorocarbons uses. The list of ‘‘acceptable’’ substitutes that historically consumed the largest PU—Polyurethane is found at www.epa.gov/ozone/snap/ volumes of ODS. RCRA—Resource Conservation and Recovery lists and the lists of ‘‘unacceptable,’’ Act C. How do the regulations for the SNAP REACH—Registration, Evaluation, ‘‘acceptable subject to use conditions,’’ program work? Authorization and Restriction of Chemicals and ‘‘acceptable subject to narrowed use RfC—Reference Concentration limits’’ substitutes are found in the Under the SNAP regulations, anyone RRR—Recovery, Recycling and Recharging appendices to 40 CFR part 82 subpart G. who produces a substitute to replace a RSC—Radiator Specialty Company class I or II ODS in one of the eight RSES—Refrigeration Service Engineers 3. Petition Process major industrial use sectors must Society Section 612(d) grants the right to any provide the Agency with notice and the SIP—State Implementation Plan person to petition EPA to add a required health and safety information SAE ICCC—SAE International’s Interior substance to, or delete a substance from, on the substitute at least 90 days before Climate Control Committee the lists published in accordance with introducing it into interstate commerce SF6—Sulfur Hexafluoride section 612(c). The Agency has 90 days for significant new use as an alternative. SBREFA—Small Business Regulatory Enforcement Fairness Act to grant or deny a petition. Where the 40 CFR 82.176(a). While this SISNOSE—Significant impact on a Agency grants the petition, EPA must requirement typically applies to substantial number of small entities publish the revised lists within an chemical manufacturers as the person SNAP—Significant New Alternatives Policy additional six months. likely to be planning to introduce the SRES—Special Report on Emissions substitute into interstate commerce,13 it Scenarios 4. 90-Day Notification TEAP—Technical and Economic Assessment Section 612(e) directs EPA to require 13 As defined at 40 CFR 82.104 ‘‘interstate Panel any person who produces a chemical commerce’’ means the distribution or transportation TEWI—Total Equivalent Warming Impact of any product between one state, territory, substitute for a class I substance to possession or the District of Columbia, and another TLV—Threshold Limit Value notify the Agency not less than 90 days TXV—Thermostatic Expansion Valve state, territory, possession or the District of UL—Underwriters Laboratories, Inc. before new or existing chemicals are Columbia, or the sale, use or manufacture of any introduced into interstate commerce for product in more than one state, territory, possession UMRA—Unfunded Mandates Reform Act or District of Columbia. The entry points for which UNEP—United Nations Environmental significant new uses as substitutes for a a product is introduced into interstate commerce Programme class I substance. The producer must are the release of a product from the facility in VOC—Volatile Organic Compounds also provide the Agency with the Continued

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may also apply to importers, conditions are in violation of section provide additional information on formulators, equipment manufacturers, 612 of the CAA and EPA’s SNAP substitutes. Since this additional or end users 14 when they are regulations. 40 CFR 82.174(c). information is not part of the regulatory responsible for introducing a substitute For some substitutes, the Agency may decision, these statements are not into commerce. The 90-day SNAP permit a narrow range of use within an binding for use of the substitute under review process begins once EPA end-use or sector. For example, the the SNAP program. However, regulatory receives the submission and determines Agency may limit the use of a substitute requirements so listed are binding under that the submission includes complete to certain end-uses or specific other regulatory programs (e.g., worker and adequate data. 40 CFR 82.180(a). applications within an industry sector. protection regulations promulgated by The CAA and the SNAP regulations, 40 The Agency requires a user of a the U.S. Occupational Safety and Health CFR 82.174(a), prohibit use of a narrowed use substitute to demonstrate Administration (OSHA)). The ‘‘further substitute earlier than 90 days after a that no other acceptable substitutes are information’’ classification does not complete submission has been provided available for their specific application. necessarily include all other legal to the Agency. EPA describes these substitutes as obligations pertaining to the use of the The Agency has identified four ‘‘acceptable subject to narrowed use substitute. While the items listed are not possible decision categories for limits.’’ A person using a substitute that legally binding under the SNAP substitute submissions: Acceptable; is acceptable subject to narrowed use program, EPA encourages users of acceptable, subject to use conditions; limits in applications and end-uses that substitutes to apply all statements in the acceptable, subject to narrowed use are not consistent with the narrowed ‘‘further information’’ column in their limits; and unacceptable.15 40 CFR use limit is using these substitutes in use of these substitutes. In many 82.180(b). Use conditions and narrowed violation of section 612 of the CAA and instances, the information simply refers use limits are both considered ‘‘use EPA’s SNAP regulations. 40 CFR to sound operating practices that have restrictions’’ and are explained below. 82.174(c). already been identified in existing Substitutes that are deemed acceptable The section 612 mandate for EPA to industry and/or building codes or without use conditions can be used for prohibit the use of a substitute that may standards. Thus, many of the all applications within the relevant end- present risk to human health or the statements, if adopted, would not uses within the sector and without environment where a lower risk require the affected user to make limits under SNAP on how they may be alternative is available or potentially significant changes in existing operating 17 used. Substitutes that are acceptable available provides EPA with the practices. subject to use restrictions may be used authority to change the listing status of only in accordance with those a particular substitute if such a change D. What are the guiding principles of the restrictions. Substitutes that are found is justified by new information or SNAP program? to be unacceptable may not be used after changed circumstance. The Agency The seven guiding principles of the the date specified in the rulemaking publishes its SNAP program decisions SNAP program, elaborated in the adding such substitute to the list of in the Federal Register. EPA uses preamble to the initial SNAP rule and unacceptable substitutes.16 notice-and-comment rulemaking to consistent with section 612, are After reviewing a substitute, the place any alternative on the list of discussed below. Agency may determine that a substitute prohibited substitutes, to list a • Evaluate substitutes within a is acceptable only if certain conditions substitute as acceptable only subject to comparative risk framework in the way that the substitute is used are use conditions or narrowed use limits, The SNAP program evaluates the risk met to ensure risks to human health and or to remove a substitute from either the of alternative compounds compared to the environment are not significantly list of prohibited or acceptable available or potentially available greater than other available substitutes. substitutes. substitutes to the ozone depleting In contrast, EPA publishes ‘‘notices of EPA describes such substitutes as compounds which they are intended to acceptability’’ to notify the public of ‘‘acceptable subject to use conditions.’’ replace. The risk factors that are substitutes that are deemed acceptable Entities that use these substitutes considered include ozone depletion with no restrictions. As described in the without meeting the associated use potential as well as flammability, preamble to the rule initially toxicity, occupational health and safety, implementing the SNAP program (59 FR which the product was manufactured, the entry into and contributions to climate change and a warehouse from which the domestic manufacturer 13044; March 18, 1994), EPA does not releases the product for sale or distribution, and at other environmental factors. believe that rulemaking procedures are • the site of United States Customs clearance. necessary to list substitutes that are Do not require that substitutes be 14 As defined at 40 CFR 82.172 ‘‘end-use’’ means acceptable without restrictions because risk free to be found acceptable processes or classes of specific applications within Substitutes found to be acceptable major industrial sectors where a substitute is used such listings neither impose any to replace an ozone-depleting substance. sanction nor prevent anyone from using must not pose significantly greater risk 15 The SNAP regulations also include ‘‘pending,’’ a substitute. than other substitutes, but they do not referring to submissions for which EPA has not Many SNAP listings include have to be risk free. A key goal of the reached a determination, under this provision. ‘‘comments’’ or ‘‘further information’’ to SNAP program is to promote the use of 16 As defined at 40 CFR 82.172, ‘‘use’’ means any substitutes that minimize risks to use of a substitute for a Class I or Class II ozone- depleting compound, including but not limited to 17 In addition to acceptable commercially human health and the environment use in a manufacturing process or product, in available substitutes, the SNAP program may relative to other alternatives. In some consumption by the end-user, or in intermediate consider potentially available substitutes. The cases, this approach may involve uses, such as formulation or packaging for other SNAP program’s definition of ‘‘potentially available designating a substitute acceptable even subsequent uses. This definition of use ’’ is ‘‘any alternative for which adequate health, encompasses manufacturing process of products safety, and environmental data, as required for the though the compound may pose a risk both for domestic use and for export. Substitutes SNAP notification process, exist to make a of some type, provided its use does not manufactured within the United States exclusively determination of acceptability, and which the pose significantly greater risk than other for export are subject to SNAP requirements since Agency reasonably believes to be technically alternatives. the definition of use in the rule includes use in the feasible, even if not all testing has yet been • manufacturing process, which occurs within the completed and the alternative is not yet produced Restrict those substitutes that are United States. or sold.’’ (40 CFR 82.172) significantly worse

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EPA does not intend to restrict a increased use of chemicals that considers Recommended Exposure substitute if it has only marginally contribute to tropospheric air pollution. Limits from the National Institute for greater risk. Drawing fine distinctions The SNAP program takes existing Occupational Safety and Health would be extremely difficult. The regulations under other programs into (NIOSH), Workplace Environmental Agency also does not want to intercede account when reviewing substitutes. Exposure Limits (WEELs) set by the in the market’s choice of substitutes by American Industrial Hygiene listing as unacceptable all but a few E. What are EPA’s criteria for evaluating Association (AIHA), or threshold limit substitutes for each end-use, and does substitutes under the SNAP program? values (TLVs) set by the American not intend to do so unless a substitute EPA applies the same criteria for Conference of Governmental Industrial has been proposed or is being used that determining whether a substitute is Hygienists (ACGIH). If limits for is clearly more harmful to human health acceptable or unacceptable. These occupational exposure or exposure to or the environment than other available criteria, which can be found at the general population are not already or potentially available alternatives. § 82.180(a)(7), include atmospheric established, then EPA derives these • Evaluate risks by use effects and related health and values following the Agency’s peer Central to SNAP’s evaluations is the environmental effects, ecosystem risks, reviewed guidelines. Exposure intersection between the characteristics consumer risks, flammability, and cost information is combined with toxicity of the substitute itself and its specific and availability of the substitute. To information to explore any basis for end-use application. Section 612 enable EPA to assess these criteria, we concern. Toxicity data are used with requires that substitutes be evaluated by require submitters to include various existing EPA guidelines to develop use. Environmental and human health information including ozone depletion health-based limits for interim use in exposures can vary significantly potential (ODP), GWP, toxicity, these risk characterizations. depending on the particular application flammability, and the potential for • Flammability—The SNAP program of a substitute. Thus, the risk human exposure. examines flammability as a safety characterizations must be designed to When evaluating potential substitutes, concern for workers and consumers. represent differences in the EPA evaluates these criteria in the EPA assesses flammability risk using environmental and human health effects following groupings: data on: associated with diverse uses. This • Atmospheric effects—The SNAP (1) Flash point and flammability approach cannot, however, imply program evaluates the potential limits (e.g. American Society of Heating, fundamental tradeoffs with respect to contributions to both ozone depletion Refrigerating and Air-Conditioning different types of risk to either the and climate change. The SNAP program Engineers (ASHRAE) flammability/ environment or to human health. considers the ozone depletion potential combustibility classifications); • Provide the regulated community and the 100-year integrated GWP of (2) Data on testing of blends with with information as soon as possible compounds to assess atmospheric flammable components; The Agency recognizes the need to effects. (3) Test data on flammability in provide the regulated community with • Exposure assessments—The SNAP consumer applications conducted by information on the acceptability of program uses exposure assessments to independent laboratories; and various substitutes as soon as possible. estimate concentration levels of (4) Information on flammability risk To do so, EPA issues notices or mitigation techniques. substitutes to which workers, • determinations of acceptability and consumers, the general population, and Other environmental impacts—The rules identifying substitutes as the environment may be exposed over a SNAP program also examines other unacceptable, acceptable to use determined period of time. These potential environmental impacts like conditions or acceptable subject to assessments are based on personal ecotoxicity and local air quality narrowed use limits in the Federal monitoring data or area sampling data if impacts. A compound that is likely to be Register. In addition, we maintain lists available. Exposure assessments may be discharged to water may be evaluated of acceptable and unacceptable conducted for many types of releases for impacts on aquatic life. Some alternatives on our Web site, including: substitutes are volatile organic www.epa.gov/ozone/snap. (1) Releases in the workplace and in compounds (VOC). EPA also notes • Do not endorse products homes; whenever a potential substitute is manufactured by specific companies (2) Releases to ambient air and surface considered a hazardous or toxic air The Agency does not issue company- water; pollutant (under CAA sections 112(b) specific product endorsements. In many (3) Releases from the management of and 202(l)) or hazardous waste under cases, the Agency may base its analysis solid wastes. the Resource Conservation and on data received on individual • Toxicity data—The SNAP program Recovery Act (RCRA) subtitle C products, but the addition of a uses toxicity data to assess the possible regulations. substitute to the acceptable list based on health and environmental effects of Over the past twenty years, the menu that analysis does not represent an exposure to substitutes. We use broad of substitutes has become much broader endorsement of that company’s health-based criteria such as: and a great deal of new information has products. (1) Permissible Exposure Limits been developed on many substitutes. • Defer to other environmental (PELs) for occupational exposure; Because the overall goal of the SNAP regulations when warranted (2) Inhalation reference program is to ensure that substitutes In some cases, EPA and other federal concentrations (RfCs) for non- listed as acceptable do not pose agencies have developed extensive carcinogenic effects on the general significantly greater risk to human regulations under other sections of the population; health and the environment than other CAA or other statutes that address (3) Cancer slope factors for available substitutes, the SNAP criteria potential environmental or human carcinogenic risk to members of the should be informed by our current health effects that may result from the general population. overall understanding of environmental use of alternatives to class I and class II When considering risks in the and human health impacts and our substances. For example, use of some workplace, if OSHA has not issued a experience with and current knowledge substitutes may in some cases entail PEL for a compound, EPA then about available and potentially available

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substitutes. Over time, the range of The initial SNAP rule included To the extent possible, EPA’s ongoing substitutes reviewed by SNAP has submission requirements and presented management of the SNAP program changed, and, at the same time, the environmental and health risk considers new information and scientific approaches have evolved to factors that the SNAP program considers improved understanding of the risk to more accurately assess the potential in its comparative risk framework. the environment and human health. environmental and human health Environmental and human health EPA previously has taken several impacts of these chemicals and exposures can vary significantly actions revising listing determinations alternative technologies. depending on the particular application from acceptable or acceptable with use of a substitute; therefore, EPA makes conditions to unacceptable based on F. How are SNAP determinations decisions based on the particular end- information made available to EPA after updated? use where a substitute is to be used. a listing was issued. For example, on Three mechanisms exist for modifying EPA has, in many cases, found certain January 26, 1999, EPA listed the the list of SNAP determinations. First, substitutes acceptable only for limited refrigerant blend known by the trade under section 612(d), the Agency must end-uses or subject to use restrictions. name MT–31 as unacceptable for all review and either grant or deny It has now been over twenty years refrigeration and air conditioning end- petitions to add or delete substances since the initial SNAP rule was uses. EPA previously listed this blend as from the SNAP list of acceptable or promulgated. In that period, the menu an acceptable substitute in various end- unacceptable substitutes. That provision of available alternatives has expanded uses within the refrigeration and air allows any person to petition the greatly and now includes many conditioning sector (June 3, 1997; 62 FR Administrator to add a substance to the substitutes with diverse characteristics 30275). Based on new information about list of acceptable or unacceptable and varying effects on human health the toxicity of one of the chemicals in substitutes or to remove a substance and the environment. When the SNAP the blend, EPA subsequently removed from either list. The second means is program began, the number of MT–31 from the list of acceptable through the notifications which must be substitutes available for consideration substitutes and listed it as unacceptable submitted to EPA 90 days before was, for many end-uses, somewhat in all refrigeration and air conditioning introduction of a substitute into limited. While the SNAP program’s end-uses (January 26, 1999; 64 FR 3861). interstate commerce for significant new initial comparative assessments of Another example of EPA revising a use as an alternative to a class I or class overall risk to human health and the listing determination occurred in 2007 II substance. These 90-day notifications environment were rigorous, often there when EPA listed HCFC–22 and HCFC– are required by section 612(e) of the were few substitutes upon which to 142b as unacceptable for use in the foam CAA for producers of substitutes to apply the comparative assessment. The sector (March 28, 2007; 72 FR 14432). These HCFCs, which are ozone class I substances for new uses and, in immediacy of the class I phaseout often depleting and subject to a global all other cases, by EPA regulations meant that SNAP listed class II ODS production phaseout, were initially issued under sections 114 and 301 of (i.e., HCFCs) as acceptable, recognizing listed as acceptable substitutes since the Act to implement section 612(c). that they too would be phased out and they had a lower ODP than the were only an interim solution. Other Finally, since the inception of the substances they were replacing and Title VI provisions such as the section SNAP program, we have interpreted the there were no other available substitutes 610 Nonessential Products Ban and the section 612 mandate to find substitutes that posed lower overall risk at the time section 605 Use Restriction made clear acceptable or unacceptable to include of EPA’s listing decision. HCFCs offered that a listing under the SNAP program the authority to act on our own to add a path forward for some sectors and or remove a substance from the SNAP could not convey permanence. end-uses at a time when substitutes lists. In determining whether to add or Since EPA issued the initial SNAP were far more limited. In light of the remove a substance from the SNAP lists, rule in 1994, the Agency has issued 19 expanded availability of other we consider whether there are other rules and 30 notices that generally substitutes with lower overall risk to available substitutes that pose lower expand the menu of options for all human health and the environment in overall risk to human health and the SNAP sectors and end-uses. specific foam end-uses, and taking into environment. In determining whether to Comparisons today apply to a broader account the 2010 class II ODS phase- modify a listing of a substitute we range of options—both chemical and down step, EPA changed the listing for undertake the same consideration, but non-chemical—than was available at the these HCFCs in relevant end-uses from do so in the light of new data not inception of the SNAP program. acceptable to unacceptable. In that rule, considered at the time of our original Industry experience with these EPA noted that continued use of these listing decision, including information substitutes has also grown during the HCFCs would contribute to unnecessary on new substitutes and new information history of the program. This varies by depletion of the ozone layer and delay on substitutes previously reviewed. sector and by end-use. the transition to substitutes that pose In addition to an expanding menu of G. What does EPA consider in deciding lower overall risk to human health and substitutes, developments over the past whether to modify the listing status of the environment. EPA established a 20 years have improved our an alternative? change of status date that recognized understanding of global environmental that existing users needed time to adjust As described in this document and issues. With regard to that information, their manufacturing processes to safely elsewhere, including in the initial SNAP our review of substitutes in this rule accommodate the use of other rule published in the Federal Register includes comparative assessments that substitutes. on March 18, 1994 (59 FR 13044), CAA consider our evolving understanding of section 612 requires EPA to list as a variety of factors, including climate H. Where can I get additional unacceptable any substitute substance change. GWPs and climate effects are information about the SNAP program? where it finds that there are other not new elements in our evaluation For copies of the comprehensive substitutes currently or potentially framework, but as is the case with all of SNAP lists of substitutes or additional available that reduce overall risk to our review criteria, the amount and information on SNAP, refer to EPA’s human health and the environment. quality of information has expanded. Web site at www.epa.gov/ozone/snap.

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For more information on the Agency’s increasing 10–15% annually.20 At that IV. What petitions has EPA received process for administering the SNAP rate, emissions are projected to double requesting a change in listing status for program or criteria for evaluation of by 2020 and triple by 2030.21 HFCs are HFCs? substitutes, refer to the initial SNAP rapidly accumulating in the atmosphere. A. Summary of Petitions rule published March 18, 1994 (59 FR The atmospheric concentration of HFC– 13044), codified at 40 CFR part 82, 134a, the most abundant HFC, has EPA received three petitions requesting EPA to modify certain subpart G. A complete chronology of increased by about 10% per year from acceptability listings of HFC–134a and SNAP decisions and the appropriate 2006 to 2012, and the concentrations of HFC–134a blends. These petitions are citations are found at www.epa.gov/ HFC–143a and HFC–125 have risen over ozone/snap/chron.html. more fully described in the notice of 13% and 16% per year from 2007–2011, proposed rulemaking (NPRM). The first 22 23 III. What actions and information respectively. petition was submitted on May 7, 2010, related to greenhouse gases have Annual global emissions of HFCs are by Natural Resources Defense Council bearing on this final action to modify projected to rise to about 6.4 to 9.9 Gt (NRDC) on behalf of NRDC, the Institute prior SNAP determinations? 24 CO2eq in 2050, which is comparable for Governance and Sustainable GWP is one of several criteria EPA to the drop in annual GHG emissions Development (IGSD), and the considers in the overall evaluation of from ODS of 8.0 GtCO2eq between 1988 Environmental Investigation Agency-US alternatives under the SNAP program. and 2010 (UNEP, 2011). By 2050, the (EIA). The petition requested that EPA During the past two decades, the general buildup of HFCs in the atmosphere is remove HFC–134a from the list of science on climate change and the projected to increase radiative forcing acceptable substitutes in multiple end- potential contributions of greenhouse by up to 0.4 W m¥2. This increase may uses and move it to the list of unacceptable substitutes in those end- gases (GHGs) such as HFCs to climate be as much as one-fifth to one-quarter of uses. In support of their petition, the change have become better understood. the expected increase in radiative On December 7, 2009, at 74 FR 66496, petitioners identified other substitutes forcing due to the buildup of CO2 since that they claimed were available for use the Administrator issued two distinct 2000, according to the findings regarding GHGs 18 under in those end-uses and they claimed Intergovernmental Panel on Climate these other substitutes present much section 202(a) of the CAA: Change’s (IPCC’s) Special Report on • lower risks to human health and Endangerment Finding: The current Emissions Scenarios (SRES) (UNEP, and projected concentrations of the six environment than HFC–134a. 2011). To appreciate the significance of On February 14, 2011, EPA found the key well-mixed greenhouse gases in the the effect of projected HFC emissions petition complete for MVAC in new atmosphere—CO , methane (CH ), 2 4 within the context of all GHGs, HFCs passenger cars and light-duty vehicles nitrous oxide (N O), HFCs, 2 would be equivalent to 5 to 12% of the and determined it was incomplete for perfluorocarbons (PFCs), and sulfur other uses of HFC–134a. EPA noted in hexafluoride (SF )—threaten the public CO2 emissions in 2050 based on the 6 its response that, at a future date, the health and welfare of current and future IPCC’s highest CO2 emissions scenario and equivalent to 27 to 69% of CO2 Agency would initiate a notice-and- generations. comment rulemaking in response to the • Cause or Contribute Finding: The emissions based on the IPCC’s lowest 25 26 one complete aspect of the petition, combined emissions of these well- CO2 emissions pathway. Additional information concerning the peer- noting in particular that EPA would mixed greenhouse gases from new evaluate and take comment on many motor vehicles and new motor vehicle reviewed scientific literature and emission scenarios is available in the factors, including, but not limited to, the engines contribute to the greenhouse gas timeframe for introduction of newer docket for this rulemaking. pollution which threatens public health substitutes for MVAC systems into the and welfare. automotive market and potential lead 20 Like the ODS they replace, HFCs are UNEP 2011. HFCs: A Critical Link in Protecting time for manufacturers of motor 19 Climate and the Ozone Layer. United Nations potent GHGs. Although they represent vehicles to accommodate such a small fraction of the current total Environment Programme. 21 Akerman, Nancy H. Hydrofluorocarbons and substitutes. volume of GHG emissions, their Climate Change: Summaries of Recent Scientific On April 26, 2012, EPA received a warming impact is very strong. The and Papers, 2013. second petition submitted by EIA. EIA most commonly used HFC is HFC–134a. 22 Montzka, S.A.: HFCs in the Atmosphere: stated that, in light of the comparative HFC–134a is 1,430 times more Concentrations, Emissions and Impacts, ASHRAE/ nature of the SNAP program’s damaging to the climate system than NIST Conference 2012. 23 evaluation of substitutes and given that carbon dioxide. HFC emissions are NOAA data at ftp://ftp.cmdl.noaa.gov/hats/ hfcs/. other acceptable substitutes are on the projected to increase substantially and 24 Velders, G.J.M., D.W. Fahey, J.S. Daniel, M. market or soon to be available, EPA at an increasing rate over the next McFarland, S.O. Andersen (2009) The large should remove HFC–134a and HFC– several decades if left unregulated. In contribution of projected HFC emissions to future 134a blends from the list of acceptable the United States, emissions of HFCs are climate forcing. Proceedings of the National substitutes for uses where EPA found increasing more quickly than those of Academy of Sciences USA 106: 10949–10954. 25 HFCs: A Critical Link in Protecting Climate and chlorofluorocarbons (CFCs) and HCFCs any other GHGs, and globally they are the Ozone Layer. United Nations Environment to be nonessential under section 610 of Programme (UNEP), 2011, 36pp the Act. EIA also requested that the 18 The relevant scientific and technical 26 IPCC, 2013: Annex II: Climate System Scenario schedule for moving HFC–134a and information summarized to support the Tables [Prather, M., G. Flato, P. Friedlingstein, C. HFC–134a blends from the list of Endangerment Finding and the Cause or Contribute Jones, J.-F. Lamarque, H. Liao and P. Rasch (eds.)]. Finding can be found at: www.epa.gov/ In: Climate Change 2013: The Physical Science acceptable to unacceptable substitutes climatechange/Downloads/endangerment/ Basis. Contribution of Working Group I to the Fifth be based on the ‘‘most rapidly feasible Endangerment_TSD.pdf. Assessment Report of the Intergovernmental Panel transitions to one or more of the’’ 19 IPCC/TEAP (2005) Special Report: on Climate Change [Stocker, T.F., D. Qin, G.-K. acceptable substitutes for each use. The Safeguarding the Ozone Layer and the Global Plattner, M. Tignor, S.K. Allen, J. Boschung, A. Climate System: Issues Related to Nauels, Y. Xia, V. Bex and P.M. Midgley (eds.)]. petitioner noted that initial approvals of Hydrofluorocarbons and Perfluorocarbons Cambridge University Press, Cambridge, United HFC–134a for a number of end-uses (Cambridge Univ Press, New York). Kingdom and New York, NY, USA. occurred in the 1990s and were based

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on the assessment made then that 1) domestic actions.’’ This rule is also environmental evaluations (e.g., all HFC–134a does not contribute to ozone consistent with that call for leadership compounds with GWP greater than 150). depletion; 2) HFC–134a’s GWP and through domestic actions. As regards That being said, we believe that the atmospheric lifetime were close to those international leadership, for the past action we are taking today, and future of other substitutes that had been five years, the United States, Canada, action we may take, does provide determined to be acceptable for the end- and Mexico have proposed an additional certainty in the specific cases uses; and 3) HFC–134a is not amendment to the Montreal Protocol to addressed. In addition, we remain flammable, and its toxicity is low.27 The phase down the production and committed to continuing to actively petitioner stated that the analysis used consumption of HFCs. Global benefits of seek stakeholder views and to share our in the listing decisions may have been the amendment proposal would yield thinking at the earliest moment appropriate in the 1990s but was no significant reductions of over 90 practicable on any future actions, as part longer so today given the range of other gigatons of carbon dioxide equivalent of our commitment to provide greater available or potentially available (CO2eq) through 2050. certainty to producers and consumers in substitutes at present. This action also addresses certain SNAP-regulated industrial sectors. aspects of the three petitions referred to On August 7, 2012, EPA notified the V. What is EPA’s final action petitioner that this petition was above. First, this action responds to the one aspect of the three petitions that concerning the HFCs addressed in this incomplete. EPA and the petitioner have rule? exchanged further correspondence that EPA found complete, namely can be found in the docket. petitioners’ request that EPA change the A. Aerosols A third petition was filed on April 27, listing of HFC–134a from acceptable to 1. Background 2012, by NRDC, EIA and IGSD. They unacceptable in new MVAC systems. requested that EPA: (See section V.B.) Second, regarding the The SNAP program provides listings • Remove HFC–134a from the list of remaining aspects of the three petitions, for two aerosol end-uses: Propellants acceptable substitutes for CFC–12 in which EPA found to be incomplete, EPA and solvents. Aerosols typically use a household refrigerators and freezers and has independently acquired sufficient liquefied or compressed gas to propel stand-alone retail food refrigerators and information to address certain other active ingredients in liquid, paste, or freezers; requests made by the petitioners. EPA’s powder form. In the case of duster • Restrict the sales of SNAP-listed action in this final rule may be sprays used to blow dust and refrigerants to all except certified considered responsive to certain aspects contaminants off of surfaces, the technicians with access to service tools of those petitions such as: Changing the propellant is also itself the active required under existing EPA listing of certain HFCs used in specific ingredient. Some aerosols also contain a regulations; aerosol uses from acceptable to solvent, which may be used in • Adopt a standardized procedure to unacceptable or acceptable, subject to manufacturing, maintenance and repair determine the speed of transition from use conditions; changing the listing of to clean off oil, grease, and other soils. obsolete high-GWP HFCs to next- certain HFCs used in specific foams Historically, a variety of propellants generation alternatives and substitutes; end-uses from acceptable to and solvents have been available to • Remove, in addition to HFC–134a, unacceptable for most uses; changing formulators. HCs (e.g., propane, all other refrigerants with 100-year the listing of HFC–134a from acceptable isobutane) and compressed gases (e.g., GWPs greater than 150 from the to unacceptable for new stand-alone CO2, N2, N2O, and compressed air) have acceptable list for household retail food refrigerators and freezers; and long been used as propellants. Prior to refrigerators and freezers and stand- changing the listing of a number of 1978, the aerosol industry alone retail food refrigerators and refrigerant blends with higher GWPs predominantly used CFCs. In 1978, in freezers. from acceptable to unacceptable for new response to evidence regarding On August 7, 2013, EPA found this and retrofit stand-alone retail food depletion of the earth’s ozone layer, the petition to be incomplete. EPA and the refrigerators and freezers. Specifically, United States banned CFC propellants, petitioner have exchanged further as explained in more detail in the with few exceptions. correspondence that can be found in the sector-specific sections of this Many consumer products that docket. document, we are revising the listings previously used CFC propellants were for substitutes in the aerosols, foams, reformulated or replaced with a variety B. How This Action Relates to the and refrigeration and air conditioning of alternatives, including not-in-kind Climate Action Plan and Petitions sectors that pose significantly greater substitutes, such as pump sprays or This action is consistent with a overall risk to human health and the solid and roll-on deodorants. Aerosol provision in the President’s CAP environment as compared with other propellant substitutes included HCFCs, announced June 2013: Moving forward, available or potentially available HCs, HFCs, compressed gases, and the Environmental Protection Agency substitutes in the specified end-uses. oxygenated organic compounds. will use its authority through the Throughout the process of our However, since the 1990s HCFCs have Significant New Alternatives Policy discussions with the regulated been controlled substances under the Program to encourage private sector community, we have sought to convey Montreal Protocol and subject to investment in low-emissions technology our continued understanding of the role regulation under the CAA, as amended by identifying and approving climate- that certainty plays in enabling the in 1990, including a phaseout of friendly chemicals while prohibiting robust development and uptake of production and import under section certain uses of the most harmful alternatives. Unfortunately, some of the 605(b)–(c) and use restrictions under chemical alternatives. key strengths of the SNAP program, section 605(a). The CAP further states: ‘‘to reduce such as its chemical and end-use emissions of HFCs, the United States specific consideration, its multi-criteria 2. What is EPA finalizing concerning can and will lead both through basis for action, and its petition process, aerosols? international diplomacy as well as tend to militate against some measures For aerosol propellants, EPA that could provide more certainty, such proposed to list, as of January 1, 2016: 27 See, e.g., 60 FR at 31097. as setting specific numerical criteria for • HFC–125 as unacceptable;

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• HFC–134a as acceptable, subject to • We are changing the status of the containing corrosion preventive use conditions, allowing its use only in aerosol propellant HFC–134a from compounds used in the maintenance of specific types of technical and medical acceptable to acceptable, subject to use aircraft, electrical equipment or aerosols (e.g., MDIs) and conditions, as of July 20, 2016, until electronics, or military equipment; • HFC–227ea as acceptable, subject to January 1, 2018, for the following pesticides for use near electrical wires, use conditions, allowing its use only in specific uses: Products for which new in aircraft, in total release insecticide MDIs.28 formulations require federal foggers, or in certified organic use Today’s action changes the status of governmental review, including: EPA pesticides for which EPA has HFC–125; HFC–227ea; blends of HFC– pesticide registration, military (U.S. specifically disallowed all other lower- 134a and HFC–227ea; and HFC–134a, as Department of Defense (DoD)) or space GWP propellants; mold release agents follows: • agency (National Aeronautics and Space and mold cleaners; lubricants and We are changing the status of the Administration (NASA)) specifications, cleaners for spinnerettes for synthetic aerosol propellant HFC–125 from or FDA approval (aside from MDIs); and fabrics; duster sprays specifically for use acceptable to unacceptable as of January products for smoke detector on removal of dust from photographic 1, 2016. • We are changing the status of HFC– functionality testing. negatives, semiconductor chips, 134a, HFC–227ea, and blends of HFC– • We are changing the status of the specimens under electron microscopes, 134a and HFC–227ea from acceptable to aerosol propellant HFC–134a from and energized electrical equipment; unacceptable for use as aerosol acceptable to acceptable, subject to use adhesives and sealants in large propellants as of July 20, 2016 except conditions as of July 20, 2016, for the canisters; document preservation following specific uses: Cleaning sprays; MDIs approved by FDA for for those uses specifically listed as 29 acceptable, subject to use conditions. products for removal of grease, flux and medical purposes, wound care sprays; • We are changing the status of the other soils from electrical equipment or topical coolant sprays for pain relief; aerosol propellant HFC–227ea and for electronics; refrigerant flushes; products and products for removing bandage blends of HFC–227ea and HFC–134a for sensitivity testing of smoke adhesives from skin. from acceptable to acceptable, subject to detectors; lubricants and freeze sprays The change of status determinations use conditions, as of July 20, 2016, for for electrical equipment or electronics; for aerosols are summarized in the use in MDIs approved by FDA. sprays for aircraft maintenance; sprays following table:

TABLE 2—CHANGE OF STATUS DECISIONS FOR AEROSOLS

End-use Substitutes Decision Uses that are acceptable, subject to use conditions

Propellants ...... HFC–125 ...... Unacceptable as of January 1, None. 2016. Propellants ...... HFC–134a ...... Unacceptable as of July 20, 2016 From July 20, 2016 to January 1, 2018: Products for except for uses listed as ac- smoke detector functionality testing; products for which ceptable, subject to use condi- new formulations require governmental review, includ- tions. ing: EPA pesticide registration, military or space agen- cy specifications, or FDA approval (other than MDIs). As of July 20, 2016: Cleaning products for removal of grease, flux and other soils from electrical equipment; refrigerant flushes; products for sensitivity testing of smoke detectors; lubricants and freeze sprays for elec- trical equipment or electronics; sprays for aircraft maintenance; sprays containing corrosion preventive compounds used in the maintenance of aircraft, elec- trical equipment or electronics, or military equipment; pesticides for use near electrical wires, in aircraft, in total release insecticide foggers, or in certified organic use pesticides for which EPA has specifically dis- allowed all other lower-GWP propellants; mold release agents and mold cleaners; lubricants and cleaners for spinnerettes for synthetic fabrics; duster sprays specifi- cally for removal of dust from photographic negatives, semiconductor chips, specimens under electron micro- scopes, and energized electrical equipment; adhesives and sealants in large canisters; document preservation sprays; FDA-approved MDIs for medical purposes; wound care sprays; topical coolant sprays for pain re- lief; and products for removing bandage adhesives from skin. Propellants ...... HFC–227ea and Unacceptable as of July 20, 2016 As of July 20, 2016: FDA-approved MDIs for medical blends of HFC– except for uses listed as ac- purposes. 227ea and HFC– ceptable, subject to use condi- 134a. tions.

28 EPA did not explicitly state in our proposal However, in general in the SNAP program, blends 29 Includes veterinary purposes. whether blends of HFC–134a and HFC–227ea of acceptable aerosol propellants are also acceptable would also be acceptable subject to use conditions. and do not require separate approval.

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(a) What other alternatives are available? N2 and not-in-kind alternatives are not adequate performance in propelling the VOC. contents of a can for technical aerosols EPA is changing the listing decisions The aerosols industry is generally or may exceed Department of for HFC–125, HFC–134a, HFC–227ea, familiar with how to address Transportation pressure requirements and blends of HFC–134a and HFC– flammability risks. The aerosols under elevated temperatures (ITW 227ea, with some exceptions, because, industry has been using flammable Polymers Sealants, 2014). For as discussed in more detail in this compounds, including flammable comparison, the vapor pressures of section, for the uses for which we are propellants, for decades, consistent with HFO–1234ze(E), HFC–134a, and CO2 at listing these substitutes as unacceptable, OSHA requirements addressing 20 °C are 422 kPa, 655 kPa, and 5,776 alternatives (i.e., chemical compounds flammability. There may be greater kPa, respectively. and technological options) are available flammability risks for some specific uses Based on the information available or potentially available that reduce the of aerosol products because of their use today, EPA believes it cannot list HFC– overall risk to human health and the in situations where there is a source of 134a as unacceptable for all aerosol environment. Other substitutes listed as heat or electrical energy that could uses. Thus, we are creating a use acceptable propellants include HFC– cause a fire (e.g., use on energized condition that would restrict use of 152a, HFO–1234ze(E), butane, propane, electrical equipment). Concerns with HFC–134a to specific uses for which isobutane, CO2 and other compressed flammability occur more with industrial alternatives are not currently or gases, and dimethyl ether (DME). In products, often referred to as ‘‘technical potentially available. addition, technological options include aerosols.’’ For further discussion on Both HFC–227ea and HFC–125 have not-in-kind alternatives such as finger/ consumer aerosols, technical aerosols, significantly higher GWPs than HFC– trigger pumps, powder formulations, and medical aerosols, see the NPRM at 134a (HFC–227ea’s GWP is 3220 and sticks, rollers, brushes, and wipes. 79 FR 46136 through 46138 (August 6, HFC–125’s GWP is 3500) or other These alternatives have GWPs ranging 2014). substitutes that could be potentially from zero to 124 compared with HFC– There are a number of alternatives used where flammability is a concern, 134a’s GWP of 1,430, HFC–227ea’s GWP with GWPs lower than the GWPs for the and there is not a significantly different of 3,220 and HFC–125’s GWP of 3,500.30 substitutes that we are listing as level of risk based on the other factors All of these alternatives, both the ones unacceptable and that are not defined as that we consider. Thus, EPA has remaining acceptable and those for VOC for purposes of SIPs, including: determined that HFC–227ea and HFC– which we are changing the listing, have HFC–152a with a GWP of 124, HFO– 125 pose significantly more risk than

an ODP of zero, are relatively low in 1234ze(E) with a GWP of 6, and CO2 other available substitutes and EPA is toxicity, and are capable of remaining with a GWP of 1. CO2 and HFO– changing their listing from acceptable to 1234ze(E) are nonflammable under below their respective exposure limits unacceptable in most uses where HFC– ambient temperature conditions, while 134a may be used to mitigate when used as aerosol propellants. In HFC–152a is flammable, but less so than flammability risks. We note that we are addition to GWP, some of the other hydrocarbons or DME. All three have not aware of any use of HFC–227ea or environmental and health attributes that GWPs significantly lower than those of of HFC–125 in industrial aerosols to the SNAP program considers that differ the HFCs for which we are changing the mitigate flammability risks. for these alternatives include impacts on listing (range of GWPs from 1,430 to local air quality and flammability. For 3,500 for HFC–134a, HFC–227ea and (2) Aerosols for Specific Medical Uses example, butane, propane, isobutane, HFC–125). For medical aerosols, there are special and DME are VOC as well as being needs to address safety and toxicity. flammable. Butane, propane, isobutane, (1) Aerosols With Flammability and Furthermore, in order for a substitute to and DME are not excluded from the Vapor Pressure Constraints be available for use in medical devices, definition of VOC under CAA Aerosols for industrial and the device using the substitute must first regulations (see 40 CFR 51.100(s)) commercial uses often require be reviewed and approved by the FDA. addressing the development of state nonflammability and in some cases, FDA has approved medications for implementation plans (SIPs) to attain specific vapor pressure criteria. For use in MDIs using HFC–134a, HFC– and maintain the national ambient air example, nonflammable aerosols are 227ea, and blends of these two HFCs as quality standards. Thus, these needed for use on energized electrical propellants. No medications have been propellants are subject to federal, state, circuits, where sparking can create a fire approved for use in MDIs using other and local regulation that may prevent or explosion hazard. Of the different propellants. Although some dry powder their use as a propellant in aerosols in alternatives that have previously been inhalers that are not-in-kind substitutes some states and counties that have listed as acceptable, the nonflammable are approved by FDA, these alternatives nonattainment areas for ground-level options at room temperature include do not work for some situations. Thus, ozone and restrict their use under this HFC–125, HFC–134a, HFC–227ea, we cannot conclude that there are other action. HFC–125, HFC–134a, HFC– HFO–1234ze(E), compressed gases alternatives available for use in MDIs 227ea, HFC–152a, HFO–1234ze(E), and including CO2 and N2, and not-in-kind that pose lower risk than HFC–134a, the compressed gas CO2 are exempted products. At slightly higher HFC–227ea, or blends of these two. In from the definition of VOC under these temperatures (30 °C or 85 °F), HFO– addition, it is our understanding that regulations and their use is expected to 1234ze(E) exhibits lower and higher because of differences in the solubility have negligible impact on ground-level flammability limits, and thus in theory of water in HFC–134a and HFC–227ea, ozone levels. As well as HFC–152a, could catch fire under specific there are some medications that are HFO–1234ze(E), and CO2, compressed conditions of concentration and applied sensitive to the presence of water for energy. Some aerosol product which only HFC–227ea may be used in 30 GWP values cited in this final rule are from the formulators have expressed concern that an MDI. IPCC Fourth Assessment Report (AR4) unless stated the lower vapor pressure of HFO– For other medical uses, EPA is aware otherwise. Where no GWP is listed in AR4, GWP values shall be determined consistent with the 1234ze(E) and the significantly higher of medical aerosols that currently are calculations and analysis presented in AR4 and vapor pressure of CO2 and other using hydrocarbons or DME as the referenced materials. compressed gases may not provide propellant, as well as not-in-kind

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alternatives for uses such as antifungals, • Products for which new As of the change of status dates, calamine sprays, freeze sprays for wart formulations require U.S. federal products cannot be manufactured with removal, and liquid bandages (ICF, government review, including: EPA HFC–134a or HFC–227ea or blends 2014a). However, EPA does not have pesticide registration, military or space thereof except for the aerosol product information that alternatives other than agency specifications, and FDA types that are listed under the use HFC–134a are available and are approval (aside from MDIs); and conditions. Products manufactured approved by FDA as propellants in • products for functional testing of prior to the change of status date may wound care sprays; topical coolant smoke detectors. still be sold, imported, exported, and sprays for pain relief; and products for In the case of HFC–125, EPA is used by the end-user after that date. As removing bandage adhesives from skin. unaware of any products using HFC– discussed below in the responses to The available substitutes for medical 125, and no public commenters comment, restricting use of aerosols by devices are limited to those approved by mentioned the existence of such the end-user, as well as restricting the FDA, and the available substitutes differ products or requested a date other than sale of previously manufactured by the type of product and medical the proposed date of January 1, 2016. aerosols, may disrupt the market and conditions treated. For these reasons, We are setting July 20, 2016, as the may not result in environmental we are listing HFC–134a, HFC–227ea date on which the status of HFC–134a, benefits. and blends of HFC–134a and HFC– HFC–227ea, and blends thereof will 227ea as acceptable, subject to use 3. How is EPA responding to comments change to unacceptable, or to about this end-use? conditions, for specific uses for which acceptable, subject to use conditions, for other alternatives that pose lower certain specific uses. For those uses that (a) Timeline overall risk to human health and the would no longer be allowed as of July Comment: EPA received comments environment are not currently or 20, 2016, this timeframe will allow from a number of commenters on the potentially available. The use formulators and packagers of aerosols to status change date of HFC–134a, HFC– conditions limit use of HFC–227ea and make the necessary changes. (ICF, blends of HFC–227ea and HFC–134a to 227ea, and HFC–125 as an aerosol 2014a; Honeywell, 2014a). A number of MDIs approved by FDA and limit use of propellant. Members of the aerosol formulators have already been testing, HFC–134a to MDIs approved by FDA industry proposed alternate years and in many cases introducing, new and the other medical uses listed above. ranging from 2018 to 2021, always in HFC–125 has a GWP of 3,500, which formulations with alternatives that reference to HFC–134a or to ‘‘technical’’ is higher than the GWP of all other remain listed acceptable. This timing aerosols. Reasons provided for these alternatives that are available for use as will provide affected aerosol dates included aligning with the aerosol propellants (HFC–227ea has a manufacturers and packagers sufficient European Union’s (EU) timeline of GWP of 3,220; HFC–134a has a GWP of time to change and test formulations January 1, 2018; a need for at least one 1,430; HFO–1234ze(E) has a GWP of 6). and, to the extent necessary, to change to two more years to complete the equipment in their factories. Like HFC–134a, HFC–227ea, CO2 and reformulation and all testing required; HFO–1234ze(E), it is VOC-exempt, For two aerosol uses, continued use of and additional time of two to five years nonflammable and low in toxicity. We HFC–134a will be allowed under the to complete approval processes: e.g., are not aware of any medical or other use conditions until January 1, 2018. Underwriters Laboratories (UL) aerosols currently using HFC–125, or of EPA is providing this longer transition approvals to meet NFPA requirements, any FDA approval for aerosols using time for these two uses because of EPA pesticide registration or testing for HFC–125. For these reasons, we have additional safety precautions and conformance with military determined that there are other available approvals outside of the control of the specifications. Members of the aerosol substitutes that pose lower overall risks aerosol formulator that must be industry also suggested that January 1, to human health and the environment in addressed before transitioning. The first 2016, is too soon to transition away this use and we are changing the listing category is those that must undergo from HFC–134a because of the need for of HFC–125 from acceptable to specific federal governmental reviews: coordination with other regulatory unacceptable. EPA pesticide registration under the requirements, because of business For more information on the Federal Insecticide, Fungicide, and considerations including the timing of environmental and health properties of Rodenticide Act, military or space the need for budgeting for capital the different aerosol substitutes, please agency specifications, and FDA expenditures, developing and see the proposed rule at 79 FR 46137– approval. The second category is aerosol implementing worker education, 46138 and a technical support products for functional testing of smoke negotiating contracts between aerosol document that provides the additional detectors, which have National Fire formulators and retailers, and for Federal Register citations (EPA, 2015d) Protection Association (NFPA) 72 technical reasons such as stability issues in the docket. requirements adopted in building codes. with HFO–1234ze(E), one of the These types of aerosols must be tested alternatives that remains acceptable for (b) When will the listings change? not only for performance but also use. NRDC and IGSD stated that EPA On or after January 1, 2016, aerosol reviewed by third parties for must maintain its 2016 timeline for products may not be manufactured with compliance with regulatory or code transition to ensure that important HFC–125 and on or after July 20, 2016, requirements or military specifications. climate reductions are realized. aerosol products may not be Given both the safety implications of Response: In determining when manufactured with HFC–134a or HFC– insufficient testing and the additional alternatives that reduce overall risk will 227ea, or blends thereof except for the time required for third-party testing be available for use, EPA considers specific uses allowed under the use and/or governmental approval that is technical constraints on the use of other conditions. In addition, as of January 1, not required for other aerosol alternatives, including when other 2018, HFC–134a will be unacceptable formulations, we have determined that alternatives may be used consistent with for certain uses, and aerosol products alternatives that reduce overall risk will safety requirements. Unlike some end- for those uses may not be manufactured not be available for these uses until uses, such as some of the refrigeration with HFC–134a as of that date: January 1, 2018. end-uses, there are a much wider variety

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of uses with a much broader range of Comment: National Aerosol sell-through period would be sufficient. considerations under the aerosol Association (NAA), Radiator Specialty Based on past experience with propellant end-use. While there are Company (RSC), LPS Laboratories, implementing a limited sell-through exceptions, as we address in this action, Consumer Specialty Products period for certain kinds of aerosols for most of these wide-ranging uses, we Association (CSPA), and Aeropres containing CFCs and with implementing do not anticipate significant hurdles to commented that there is currently no an unlimited sell-through period for transitioning to alternatives. Based on industry consensus on the safe handling other aerosols, we found that a limited information provided by the of HFO–1234ze(E) (and ‘‘any alternative sell-through can result in market manufacturer of HFO–1234ze(E), a products’’) in aerosol plants. CSPA disruption and can strand inventory. number of their customers have been states that the CSPA Aerosol Propellants Further, a limited sell-through period able to develop and introduce aerosol Safety Manual will need to be updated does not necessarily preclude emissions products using HFO–1234ze(E) in a to include new propellants like HFO– of HFCs to the environment because matter of months rather than years. 1234ze(E), and that the consensus while manufacturers and distributors Except in limited cases, as discussed guidelines will then be used to assure would need to dispose of stranded below, commenters requesting a longer that fire and building codes are updated inventory, there is no current transition period did not provide to properly cover new propellants. The requirement prohibiting venting of the concrete support for why more time for commenter also states that while they contents to the atmosphere (unlike for specific uses is needed, resting only on seek consensus on updating their safety refrigeration or MVAC). In this rule, we general statements that time is needed manual, companies are able to proceed allow new cars or new stand-alone for ‘‘formulation’’ and ‘‘testing.’’ Based using the guidance provided by the refrigeration equipment manufactured on the information available showing supplier, but many CSPA members with HFC–134a before the change of that manufacturers have been able to prefer to await industry consensus status date to be used and serviced after transition relatively quickly, but also standards. LPS Laboratories comments the change of status date to avoid recognizing that there may be some that applicable codes need to be market disruption, creation of stranded variation in the time needed for specific updated before other alternatives can be inventory, and perverse incentives for uses, we are establishing a change of used and suggests that a January 1, releasing refrigerant to the environment; status date of July 20, 2016—roughly 2018, date for listing HFC–134a as a closely analogous treatment for seven months later than the proposed unacceptable is more appropriate. aerosols is to allow manufacturers and date of January 1, 2016. This will allow Response: In the absence of industry distributors to sell and end users to use approximately one year from the time consensus guidance, a number of aerosol products manufactured before this rule is issued in which aerosol formulators are already the relevant change of status date. manufacturers should be able to address manufacturing products safely using Finally, because of the relatively short their generalized testing and HFO–1234ze(E) relying upon safety period from issuance of EPA’s final rule reformulation concerns. Also, HFC– guidelines developed by the chemical to the compliance date, we do not 134a remains acceptable, subject to use producer. No commenters raised, and expect that there will be a large conditions, for many uses, reducing the we are unaware of, any specific safety accumulation of inventory. Accordingly, number of products for which concerns that are not addressed in this this rule allows for an unlimited sell- companies must reformulate, test, and guidance issued by the chemical through and use period for covered transition to other alternatives. producer. CSPA mentioned updating aerosol products manufactured before For certain aerosol products using fire and building codes using the the change of status date. HFC–134a that must go through a consensus guidelines, but did not state federal government or other third-party how these are related and also indicated (c) Use Conditions approval process for new formulations, that some companies have been able to Comment: Honeywell, the producer of we are establishing a change of status move ahead without updates to fire and HFO–1234ze(E), stated that there are date of January 1, 2018. These products building codes based upon the either commercially available products include those needing EPA pesticide guidance. For that reason, we do not or shelf-ready products that have not yet registration, testing to U.S. military or believe there is a basis for determining been commercialized that do not space agency specifications, and FDA that HFO–1234ze(E) is not available for contain HFC–134a for some of the uses approval (aside from MDIs). In addition, safe use until January 1, 2018, as for which EPA proposed to change the we are establishing a change of status suggested by commenters. status of HFC–134a, to acceptable, date of January 1, 2018, for a product subject to use conditions, including (b) Sell-Through Period that requires extensive testing to NFPA cleaning products for electronics, sprays standards, specifically for smoke Comment: Honeywell stated that there for aircraft maintenance, and dusters. detector functional testing. Based on should be a limited sell-through period Response: EPA agrees, and we note information received during the public to prevent stranded inventories for that the uses identified in the use comment period, we have determined aerosol products, while avoiding delays conditions encompass a variety of that for these specific uses, alternatives in the transition to low-GWP highly specific uses. While products that pose less risk are not available until substitutes. The commenter suggested without one of these substitutes or a these testing and registration processes that EPA prohibit the sale, import and blend of these substitutes might be used are complete. export of aerosol products manufactured in one specific use, this does not hold EPA disagrees that we should align with unacceptable substitutes by no true for the entire range of uses in the the timelines in this rule with the EU later than January 1, 2017. The use category. In particular, this is the timelines. The EU regulations rely upon commenter also suggested that the sell- case for uses where flammability is of different authority than the SNAP through period should apply only to concern, such as for electronics cleaning program, and reflect the European products that were manufactured prior and specialty dusters that are used on context. We believe it is appropriate for to January 1, 2016, and that have high-voltage equipment. In the future, EPA decisions to base timelines upon entered the distribution channel. additional testing may indicate that when alternatives that reduce overall Response: EPA disagrees with the other alternatives, such as HFO– risk are available in the United States. commenter’s suggestion that a limited 1234ze(E), can be used safely even

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under conditions where flammability is language should more clearly specify Response: EPA recognizes that not all of concern, but the information our intent, which is to cover all MDI alternative propellants work in every available to date is not currently uses for which FDA has approved HFC– particular formulation. The commenters sufficient. Thus, we agree with other 134a, HFC–227ea, or blends of these have described specific situations where commenters from the aerosol industry, HFCs. This would include the wider CO2 and nitrogen may not be such as CSPA, that HFC–134a continues group of medical uses suggested by King appropriate propellants. However, other to be necessary in specific uses where & Spaulding, including the treatment of alternatives are also listed as acceptable. other alternatives that pose less overall conditions or diseases of other organs HFO–1234ze(E) and HFC–152a have risk to human health and the (for example diabetes) where aerosols some physical similarities with HFC– environment are not available. can be used for systemic delivery 134a and the commenters do not claim Comment: Arkema asked whether through the lung or nose. It is our that these other alternatives are not EPA is proposing that HFC–227ea understanding that HFC–134a and HFC– available. continue to be acceptable for MDIs 227ea are the only available alternatives Comment: NRDC and IGSD urged the because of ‘‘the volumes or a record of for MDIs approved by FDA, with dry Agency to deny any requests in the unique suitability for a particular powder inhalers as an additional aerosols sector for additional purpose,’’ when HFC–134a might pose possible not-in-kind alternative in exemptions. lower overall risk compared to HFC– limited cases. Thus, we believe that Response: EPA has considered the 227ea, since its GWP is less than half there are no other alternatives available comments and information submitted that of HFC–227ea. or potentially available for all MDIs during the comment period and is Response: Arkema’s comment seems approved by FDA that pose less risk adding a limited number of uses to the to suggest that we should list HFC– overall to human health and the use conditions that would allow 227ea as unacceptable for use in MDIs, environment. We have revised the continued use of HFC–134a, HFC– because it has a higher GWP than HFC– wording of the regulatory listing 227ea, or blends thereof for the reasons 134a; we disagree. Although the GWP decision to make clear that the use provided elsewhere in this preamble. for HFC–227ea is significantly higher condition for HFC–134a, HFC–227ea, Comment: Honeywell, NAA, and CSPA commented on the than that for HFC–134a, our and blends of HFC–134a and HFC– nonflammability of HFO–1234ze(E). understanding is that there are technical 227ea applies to all MDIs approved by NAA indicated that HFO–1234ze(E) was reasons why HFC–134a may not FDA. perform adequately as a propellant in found to be nonflammable by a number Comment: HSI (Fire & Safety Group, MDIs using certain kinds of of standard tests (e.g., ASTM E-681) and LLC), Honeywell, DuPont, and EIA medications. For example, because aerosol flammability test methods (e.g., commented that there are available some medications could react or flame extension, enclosed space alternatives and there is sufficient degrade in the presence of moisture, and ignition), as well as by a non-standard supply of these alternatives to support water is much more soluble in HFC– test including a test that found no EPA’s proposed change of status 134a than in HFC–227ea, further ignition up to temperatures greater than technical work is needed to determine decisions for the aerosol propellants 900 °F. Honeywell commented that if HFC–134a is able to serve as a end-use. while it is accurate to say that HFO– propellant in all MDIs. Currently, it is Response: EPA agrees with the 1234ze(E) may exhibit vapor flame our understanding that for those types commenters that, for the most part, limits at elevated temperatures, that is of medications, there are no alternatives there is a sufficient supply of only one of many properties that must to HFC–227ea that pose lower overall alternatives that will support a be taken into consideration when risk to human health and the transition away from the substitutes that characterizing HFO–1234ze(E) and its environment. we have concluded provide a greater usefulness in formulating nonflammable Comment: The International risk to human health and the aerosol products. This commenter also Pharmaceutical Aerosol Consortium environment. However, as discussed in provided additional information about (IPAC) and Mexichem Fluor, Inc. more detail above and in response to other tests on the flammability of HFO– (Mexichem) suggested using the same other comments, in some specific cases 1234ze(E). CSPA said that there is still language for the listing for MDIs for we received information that some concern about the potential for HFC–227ea as for HFC–134a. IPAC, demonstrates the existence of flammability at higher ambient Mexichem, and King & Spaulding technological challenges that support a temperatures, and that CSPA member suggested revising the language to apply later date for the change in status. In product marketers, formulators and to a wider group of medical uses, those cases, we are providing a later manufacturers are working to assure including the treatment of conditions or date. that specific products in various diseases of other organs (for example Comment: Commenters in the aerosol categories can be formulated, diabetes) where aerosols can be used for industry commented on situations manufactured and used safely and systemic delivery through the lung or where some alternatives other than effectively. nose, or that HFC–134a and HFC–227ea HFC–134a are not effective or feasible. Response: Based on the information should be allowed for any medical MDI NAA commented that if CO2 were available to EPA at this time, we agree that has been FDA-approved regardless feasible, it would already be used. LPS that HFO–1234ze(E) is nonflammable in of disease condition treated. One of the Laboratories commented that most situations that aerosols will be commenters also stated it should be formulators must consider chemical used. However, we have not seen results made clear that blends of HFC–134a and compatibility with formulations; for of testing that cover all of the types of HFC–227ea are also acceptable for such example, CO2 cannot be used with products for which there are concerns use. water-based formulations due to the about the need for a nonflammable Response: EPA agrees with the formation of carbonic acid. LPS aerosol propellant, such as aerosol commenters that the lists of medical Laboratories commented that nitrogen products used on energized circuits or conditions treated with MDIs should be has very limited uses due to its lack of other electrical equipment. For other consistent for HFC–134a and HFC– solubility and the substantial pressure uses, where we have evidence of 227ea. Additionally, we agree that the drop that occurs as the product is used. product-specific testing on HFO–

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1234ze(E) showing nonflammability whether data indicate that an aerosol 134a and would not work with another (e.g., tire inflators), we have concluded tire inflator using HFO–1234ze(E) propellant. Therefore, we are adding that the flammability risks of HFO– would be flammable under the pressure, aerosols for sensitivity testing of smoke 1234ze(E) are not a significant concern. temperature, and likely ignition sources detectors to the list of use conditions. Comment: Several commenters specific to this use. This will ensure a For portable safety horns, personal discussed flammability concerns for tire relevant risk comparison and will not defense sprays, and freeze sprays for inflators, with some suggesting that they compare to other flammable substances wastes (as opposed to electronic freeze should be added as a use for which used in other parts of a motor vehicle. sprays), there are other alternatives that HFC–134a is acceptable, subject to use One manufacturer of aerosol tire are available or potentially available conditions, others suggesting a later inflators has tested a formulation using that reduce overall risk to human health change of status date, and others HFO–1234ze(E) and has found it is and the environment. Products using supporting the proposal. NAA and RSC nonflammable under the conditions that HFO–1234ze(E) already exist or are in stated that due to past accidents traced exist for use of a tire inflator (RSC, development for these uses. EPA to flammability of tire inflators, it is 2014). Therefore, other alternatives are received no information indicating that necessary to test all aspects of the available besides HFC–134a that alternatives other than HFC–125, HFC– inflators to ensure that there are no sufficiently mitigate flammability risks 134a or HFC–227ea, or blends thereof, flammability issues with HFO– for this use. Concerning RSC’s cannot be safely used in tissue freeze 1234ze(E). RSC and Honeywell suggestion for a change of status date of sprays. commented on the specific testing January 1, 2018, to give sufficient time Comment: ITW Polymers Sealants required to ensure that new tire inflators for additional testing, the commenter requested that EPA either clarify that using HFO–1234ze(E) are provided insufficient information on the canister adhesives and sealants are not nonflammable, because of the types of testing or timeframes involved considered to be aerosols, or else that possibility of ignition sources such as to warrant providing additional time. EPA add this use to the list of use application of a torch to the rim of the Further, in this final rule, we are conditions for HFC–134a. ITW Polymers tire or sparking from metal tools providing roughly an additional seven Sealants provided information contacting a steel belt during tire repair. months beyond the date in the proposal indicating that flammability of the ITW Global Tire Repair commented that to meet commenters’ general comments propellant is of concern in the previous Aerosol Tire Inflators were about requiring additional time for fabrication facilities with this use, and flammable and there were several testing. Based on the information that use of hydrocarbon propellants accidents in which tire repair available, HFO–1234ze(E) is an option would exceed VOC limits set for these professionals were injured when a spark that other manufacturers of aerosol tire products in many areas of the country. ignited the product. This commenter inflators are using to formulate products The commenter also indicated that also stated that EPA should not dismiss that are not flammable under the HFO–1234ze(E), CO2, and N2, the only the need for a nonflammable product conditions expected for that use. other propellants that would address because other aspects of motor vehicles Comment: Commenters from the flammability concerns for this use are flammable; tires and wheels have aerosol industry requested that EPA besides HFC–134a, have vapor pressures not been designed and engineered to include additional uses for which HFC– outside of the range that would provide contain flammable products, unlike 134a is acceptable, subject to use sufficient performance. In the absence of many other flammable products in conditions. These uses include certain sufficient vapor pressure, as with HFO– motor vehicles. CSPA referred to a aerosols used for testing smoke detector 1234ze(E), the commenter claims that March, 1999 recall from the National sensitivity and ‘‘emergency safety horns there will be performance problems Highway Traffic Safety Administration exclusively used for marine emergency such as lower bond strength or bumps (NHTSA) recall for 32 million units of situations and/or industrial emergencies and mounds in furniture surfaces; with an aerosol tire inflator due to injuries and evacuations.’’ Reasons cited include the higher pressure propellants N2 and caused by the product’s flammability. allowing time for developing and CO2, the commenter states that these Mexichem comments HFO–1234ze(E) approving new smoke detector will result in exceeding Department of requires further evaluation before sensitivity testing equipment and the Transportation internal pressure limits implementation for emergency tire need for nonflammability because at elevated temperatures. inflators and sealers because of its emergency safety horns function where Response: We do consider canister flammability and uncertainty regarding flames or other ignition sources are adhesives and sealants to be aerosols its compatibility with sealants. present. An environmental group states because they are pressurized containers Honeywell, the manufacturer of HFO– that it disagrees with comments that and they use a propellant, as opposed to 1234ze(E), commented that third-party request continued use of HFC–134a in solely mechanical means, to expel the testing of aerosol tire inflators using freeze sprays, tissue freezes, portable other ingredients of the formulation HFO–1234ze(E) found them to be safety horns and personal defense from the container. The information nonflammable. sprays, as these applications can use provided by the commenter on vapor Response: We acknowledge that there other lower-GWP alternatives such as pressure concerns is plausible, based on have been reports of accidents dimethyl ether, HFO–1234ze(E), and the relative vapor pressures of the associated with use of flammable tire CO2. different propellants. It is possible for inflators in the past, particularly Response: For aerosols used for smoke fabrication facilities to use flammable affecting tire repair professionals. Not detector sensitivity testing, EPA adhesives and propellants safely, but it all manufacturers of tire inflators agree received information from a would require time to make the that a nonflammable propellant is manufacturer of such products that this necessary upgrades to address these necessary, given there are tire inflators use requires redesign of equipment for risks. It is also of concern that in VOC using hydrocarbons already on the testing smoke detectors, and not just nonattainment areas, large amounts of market. Although HFO–1234ze(E) can reformulation of the aerosol. This hydrocarbons in these large canister ignite under higher temperature information indicates that the adhesive containers would cause conditions using the standard test equipment for such testing is designed canister adhesives and sealants to ASTM E 681, a relevant question is based on the vapor pressure of HFC– exceed their VOC limits. Of the

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available propellant options that are not back together at high temperatures well fittings required by SNAP for HFC–134a VOC or are exempted from the above the level at which HFO–1234ze(E) as a motor vehicle air conditioner definition of VOC—HFC–134a, HFO– becomes flammable (e.g., above 1,995 refrigerant. However, an aerosol can 1234ze(E), CO2, and N2—to date, only °C). primarily intended to inject additives, HFC–134a has been shown to be in a CSPA stated that it should be clarified e.g., dye, rather than to add HFC–134a pressure range that provides sufficient that ‘‘Cleaning products for removal of as a refrigerant would be considered an performance. Thus, it is likely that grease, flux, and other soils from aerosol, and use of HFC–134a as the HFC–134a is the only available electrical equipment or electronics’’ propellant would not be allowed as of propellant for canister adhesives and includes cleaners for refrigeration coils July 20, 2016, under this final rule. We sealants in many areas of the country. because of similar requirements for do not consider this type of product to Therefore, this final rule adds adhesives nonflammability. NAA stated that its fit under the commenter’s request for and sealants in large canisters to the list members did not reach consensus on products for servicing. Further, we of uses where HFC–134a is acceptable, whether refrigerant flushes should be disagree with the commenter that it is subject to use conditions. added to the acceptable list. This necessary to have a propellant that is Comment: A number of members of commenter states that it is common the same as the refrigerant used in the aerosol industry requested that EPA practice in the industry to remove MVAC. We note that in the future, consider adding aerosols for use on flushing agents from lines and blowing HFO–1234yf or other refrigerant energized electrical equipment as a use them dry with nitrogen or compressed substitutes will be used as a refrigerant for which HFC–134a is acceptable, air after flushing, which eliminates risks in many vehicles; thus, in the future, subject to use conditions. Specific posed by welding lines after flushing. automotive products will need to be products mentioned include dusters for Response: Because of the extremely formulated to include propellants other use on live electric circuits, contact high temperatures cited by MicroCare than HFC–134a, as well as formulated cleaners for energized circuits, mold and Traulsen that may be present in a with propellants that are different from cleaners, and electronic freeze sprays. refrigerant line after flushing, EPA the refrigerant used in the MVAC Response: EPA agrees that, given the agrees that it is necessary to have a system. high temperatures and high electrical nonflammable propellant available for Comment: DuPont recommended that energy present on energized electrical refrigerant flushes. The term ‘‘refrigerant EPA establish use conditions rather than equipment, it is necessary to retain the flushes’’ also refers to cleaners for narrowed use limits in implementing option of a propellant that remains refrigerant coils. Although nitrogen can any changes of status for HFCs used in nonflammable at high temperatures. As be used to purge refrigerant lines to aerosols. The commenter stated that described elsewhere in the preamble, remove refrigerant flushes prior to acceptable conditions of use are a compressed gases such as CO2 and N2 brazing or welding, it is not clear that relatively straightforward, self- may be nonflammable but are not this is a universal practice in the implementing regulatory approach that appropriate in some situations, due to industry. Therefore, we are adding would limit the burden on aerosol pressure drop-off and reactions with refrigerant flushes to the use condition companies, most of which are small other formulation ingredients. HFO– specifying uses that may continue to use businesses, in complying with the 1234ze(E) is nonflammable in many HFC–134a. changed status. DuPont commented that situations, but it is not yet clear if it Comment: SAE International and narrowed use limits are a much more remains nonflammable in the presence Alliance of Automobile Manufacturers administratively intensive approach for of the high temperatures and high (AAM) commented that there are both the Agency and the regulated electrical energy in the specific uses aerosol products available for servicing community, and would impose mentioned by the commenters. If MVAC systems which contain additives significant burdens on these small additional information becomes in a can propelled by HFC–134a which businesses, as well as on EPA. available showing that HFO–1234ze(E) the commenters believe should be Response: We agree with the remains nonflammable in such acceptable, subject to use conditions. commenter that narrowed use limits are situations, we may revisit this decision The commenters stated that the use of more administratively burdensome. We in the future. In this final rule, we are propellants other than HFC–134a could are establishing use conditions in the adding mold cleaners, electronic freeze cause technical problems, could final rule. sprays, and dusters for use on energized contaminate refrigerant so that EPA- (d) HFC Consumption and Climate electrical circuits to the list of aerosol approved Recovery, Recycling and Impact of Aerosols products that may continue to use HFC– Recharging (RRR) equipment cannot be 134a under the use conditions. We used, or could be incompatible with Comment: DuPont, Mexichem and the consider electrical contact cleaners for SAE standards if the propellant goes Consumer Specialty Products energized electrical equipment to be into the MVAC systems. Association (CSPA) commented on the part of the use ‘‘cleaning products for Response: EPA considers an aerosol relatively small contribution of non- removal of grease, flux and other soils can containing HFC–134a used to medical aerosols to HFC consumption, from electrical equipment or recharge an MVAC system to fall under stating that it represents between 1 and electronics’’ and therefore covered by the MVAC end-use and not the aerosol 2% of all HFC consumption. A producer the use condition. propellant end-use. Under the SNAP of tire inflators noted that tire inflators Comment: MicroCare, a company lists for the MVAC end-use, HFC–134a make up less than 0.2% of the current specializing in cleaning, and Traulsen, a remains an acceptable substitute for use of HFC–134a. Mexichem stated that manufacturer of commercial servicing existing systems. An aerosol the continued availability of HFC–134a refrigeration equipment, request that can containing HFC–134a refrigerant for the small businesses and consumers refrigeration system flushes be added to and oil or leak sealant, which is used to that produce/rely on aerosol products, the use condition specifying which end- inject oil or repair leaks and to then will make no appreciable difference to uses may still use HFC–134a. They recharge MVAC systems, would also fit EPA’s goal of reducing GHG emissions, explain that after removing refrigerant in the MVAC end-use and remains because aerosol products account for and flushing any oils or particulates left, acceptable for use on existing systems. only five percent of total HFC the lines are brazed, soldered or welded These cans must have the unique consumption, and of that portion, only

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24% serve non-medical purposes. This Response: EPA did not propose and is manufacturing or are actively commenter suggested that EPA should not finalizing a change in status for developing light-duty models using accommodate these uses through HFC–152a in aerosols. See preamble HFO–1234yf, HFC–152a, and CO2. The exemptions or a delay in the ‘‘de- section V.A.3 for EPA’s status changes development of MVAC systems using listing’’ of HFC–134a. In contrast, for HFCs in the aerosols sector, and lower-GWP refrigerants has been Honeywell mentions that its new supporting document Economic Impact encouraged by MVAC refrigerant technologies in the aerosol sector could Screening Analysis for Regulatory requirements in Europe, where the reduce GHG emissions by more than 6 Options to Change Listing Status of European Union Directive on Mobile MMTCO2eq per year in 2016. High-GWP Alternatives (ICF, 2014f; ICF, Air Conditioning (MAC Directive) Response: EPA agrees that the aerosol 2015b). mandates transition to a refrigerant with a GWP below 150 by January 1, 2017,32 sector comprises a small portion of the (f) Imports total consumption of HFCs. However, and in the United States by the we disagree that we should not change Comment: CSPA expressed concern availability of credits under the Light- the status of HFCs for the aerosol about noncomplying products from Duty Greenhouse Gas (LD GHG) Rule, propellant end-use because GHG offshore, which they state has been a described in further detail below. emissions from that end-use are small. large problem in the past. CSPA stated Neither HFC–134a nor any of the We note that any given end-use within that for retail products, more time is refrigerants listed more recently is the 50-some SNAP end-uses may be needed to adjust contracts and to work ozone-depleting. HFO–1234yf, HFC– relatively small compared to the whole. with EPA to ensure that CSPA member 152a, and CO2 have much lower GWPs Section 612(c) of the CAA directs EPA complying products are not displaced than HFC–134a. HFO–1234yf has a to publish lists of substitutes prohibited by non-complying products from GWP of 4, HFC–152a has a GWP of 124, for specific uses and safe alternatives for offshore. and CO2 (by definition) has a GWP of 1 specific uses. Thus, we make our Response: For aerosol products, the while HFC–134a has a GWP of 1,430. decision by considering the overall risk rule applies to imported products as HFC–134a and CO2 are nonflammable; to human health and the environment well as to manufacture of products in HFO–1234yf and HFC–152a are posed by the available or potentially the United States. By providing a full flammable. All of the gaseous available substitutes within each end- year after finalization of the rule before refrigerants can cause asphyxiation at use, rather than comparing risks in a change of status is required for the high concentrations. CO2 concentrations different end-uses to each other. We HFCs covered by this action known to that could potentially result from disagree with the commenter’s be in current use for aerosol product refrigerant leaks into the passenger suggestion that EPA provide a later manufacture, there is now additional compartment without mitigation change of status date for aerosol uses time to adjust contracts and work with measures could reduce a driver’s because of their relatively low GHG retailers. EPA welcomes the suggestion attentiveness and performance. HFC– emissions. Instead, EPA considers the that we should work together with the 134a and the three lower-GWP time in which alternatives are available aerosol industry and retailers to avoid alternatives are exempt from the for use, which involves the feasibility of sale of non-complying products that definition of VOC under CAA implementing alternatives with lower might be imported. regulations (see 40 CFR 51.100(s)) overall impacts on human health and B. MVAC Systems for Newly addressing the development of SIPs to the environment. EPA appreciates the Manufactured Light-Duty Motor attain and maintain the national information provided by one commenter Vehicles ambient air quality standards. As that indicates that for the aerosol sector, discussed in the NPRM, EPA has the change in status for HFC–134a, 1. Background created use conditions for HFC–134a, HFC–227ea, and HFC–125 could reduce MVAC systems cool passenger cars, HFO–1234yf, HFC–152a, and CO2 that GHG emissions by more than 6 light-duty trucks, buses, and rail establish unique fittings and labeling MMTCO2eq per year. vehicles. CFC–12 was the refrigerant requirements, and where appropriate, mitigate flammability and toxicity risks. (e) Small Business Impacts historically used in the manufacture of MVAC systems. HFC–134a, along with a HFO–1234yf is being used in cars on Comment: Falcon Safety Products number of other substitutes, was found the road today in the United States. At comments that they transitioned from acceptable for use in light-duty vehicles the time of the proposal for this rule, HCFCs to HFCs in 1993, after which it in 1994 and at the same time, CFC–12 EPA was aware that HFO–1234yf was in began transitioning from HFC–134a was being phased out of production. By use in MVAC systems in approximately 33 (with a GWP of 1,430) to HFC–152a the mid-1990s, use of CFC–12 in nine models in the United States (with a GWP of 124) in compressed gas manufacturing new light-duty vehicles produced by several manufacturers of dusters, at a significant cost to its ceased in the United States and light-duty vehicles. EPA expects, and company, in terms of retooling and manufacturers of light-duty vehicles several commenters indicated that, installing new gas tanks and filing lines. uniformly decided to adopt HFC–134a additional models have or will be Falcon Safety Products supports the for use in MVAC. Today, while MVAC introduced using HFO–1234yf systems EPA’s high-GWP emissions reduction systems in some older vehicles may still over the next several years. The results efforts, but believes that they should not be using CFC–12, HFC–134a remains of a 2014 industry survey submitted by negatively impact small businesses or the dominant refrigerant used in light- have a detrimental impact on the safety, 32 Directive 2006/40/EC of the European duty vehicles worldwide. More recently, Parliament and of the Council of 17 May 2006 (EU affordability, or efficacy of its product additional alternatives for MVAC have MAC Directive). This document is accessible at: categories. Falcon Safety Products been listed as acceptable, subject to use eur-lex.europa.eu/LexUriServ/ comments that transitioning to HFO– conditions,31 including HFO–1234yf, LexUriServ.do?uri=CELEX:32006L0040:EN:HTML. 33 Nelson, 2013. Gabe Nelson. Automakers’ 1234ze(E) is very expensive for small HFC–152a, and carbon dioxide (CO2 or switch to new refrigerant will accelerate with EPA businesses like itself, in terms of R–744). Manufacturers are currently credits, European mandate. Automotive News. changing tanks, filling lines, and Available online at www.autonews.com/article/ revising labels and marketing materials. 31 Listed at 40 CFR part 82, subpart G. 20131230/OEM01/312309996/warming-to-the-idea.

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AAM and the Association of Global announced its intention to and R–426A (also known as RS-24) with Automakers (Global Automakers) as a commercialize vehicles that use CO2 as GWPs of 1,380 and 1,508, respectively, public comment to this rule found that the MVAC refrigerant in the next five and the HCFC blends, R–416A (also automobile manufacturers who years, and perhaps as early as 2016.37 known as HCFC Blend Beta or FRIGC responded to the survey had plans in In 2008, EPA found HFC–152a FR12), R–406A, R–414A (also known as place to transition 90% of light-duty acceptable subject to use conditions. HCFC Blend Xi or GHG–X4), R–414B models sold in the United States by or MVAC systems using HFC–152a have (also known as HCFC Blend Omicron), before MY 2021.34 According to not been commercialized to date; HCFC Blend Delta (also known as Free comments submitted by Honeywell, however, EPA is aware of a Zone), Freeze 12, GHG-X5, and HCFC there are approximately 28 different demonstration project in India with a Blend Lambda (also known as GHG-HP), automobile brands selling around 60 major Indian motor vehicle with GWPs ranging from 1,480 to 2,340 different models designed to use HFO– manufacturer considering HFC–152a in and ODPs ranging from 0.012 to 0.056. 1234yf globally.35 DuPont stated that secondary loop MVAC systems.38 For simplicity, we refer to these more than 7 million vehicles using In addition to the use and substitutes as ‘‘the refrigerant blends’’ in HFO–1234yf are estimated to be on the development of HFO–1234yf, HFC– the following discussion. road by the end of 2015 globally, and in 152a, and CO2 MVAC systems, EPA is As noted above, none of these are addition to infrastructure being in place aware of ongoing research and currently used by the original at vehicle assembly plants, equipment development which could ultimately equipment manufacturers (OEMs) nor suppliers are already producing the result in future listings of additional are we aware that any models are being under hood, in factory, and service alternatives for light-duty MVAC equipment.36 systems. For example, since the developed for use with these While EPA was aware in the 1990s publication of the proposed rule, the substitutes. All of these refrigerant blends have GWPs that are significantly that CO2 might be a feasible alternative SNAP program received a new in this application, the state of research submission for another low-GWP higher than the GWPs for HFO–1234yf, and development indicated that it was alternative that is a blend with a GWP HFC–152a, and CO2 and the blends not yet available because a design had below 150. containing HCFCs have ODPs ranging not yet been developed that would There are also several blend from 0.012 to 0.056. As discussed, there allow safe use in MVAC systems in refrigerants that have been listed as are alternatives with lower overall risk light-duty vehicles. More than 20 years acceptable or acceptable, subject to use to human health and the environment later, EPA is still not aware of current conditions, since 1994, but that have that are available for this use. commercial use of CO2 in MVAC never been developed for use in MVAC 2. What is EPA finalizing regarding systems. However, significant research or used in manufacture of new vehicles. MVAC systems for newly manufactured and development are occurring in order Today’s action will change the status of light-duty motor vehicles? to design a system that will ensure CO2 these refrigerant blends to unacceptable can be used safely as an MVAC as of MY 2017 for use in newly The change of status determinations refrigerant. At least one global manufactured light-duty vehicles. These for MVAC are summarized in the manufacturer of light-duty vehicles has substitutes include HFC blends SP34E following table:

TABLE 3—CHANGE OF STATUS DECISIONS FOR MVAC

End-use Substitutes Decision

Motor vehicle air conditioning (new equipment HFC–134a ...... Unacceptable as of Model Year (MY) 2021, in passenger cars and light-duty trucks only). except where allowed under a narrowed use limit through MY 2025. Acceptable, subject to narrowed use limits, for vehicles exported to countries with insufficient serv- icing infrastructure to support other alter- natives, for MY 2021 through MY 2025; Un- acceptable for all newly manufactured vehi- cles as of MY 2026. Motor vehicle air conditioning (new equipment R–406A, R–414A (HCFC Blend Xi, GHG–X4), Unacceptable as of MY 2017. in passenger cars and light-duty trucks only). R–414B (HCFC Blend Omicron), HCFC Blend Delta (Free Zone), Freeze 12, GHG– X5, HCFC Blend Lambda (GHG-HP), R– 416A (FRIGC FR–12, HCFC Blend Beta), SP34E, R–426A (RS–24, new formulation).

(a) HFC–134a unacceptable for use in air conditioning but with one exception. Specifically, we systems in newly manufactured are including a narrowed use limit for In the August 6, 2014, proposal, EPA passenger cars and light-duty trucks HFC–134a in MVAC systems of newly proposed to change the listing status of beginning in MY 2021.39 This final manufactured passenger cars and light- HFC–134a from acceptable to action adopts the proposed approach, duty trucks destined for use in countries

34 EPA–HQ–OAR–2014–0198–0207 and EPA– 38 Andersen et al., 2015. ‘‘Secondary Loop Motor Delphi, Fiat, General Motors, Volvo, Red Dot, SAE HQ–OAR–2014–0198–0113. Vehicle Air Conditioning Systems (SL–MACs). Cooperative Research Projects, And Other 35 EPA–HQ–OAR–2014–0198–0170. Using Low-Global Warming Potential (GWP) Engineering Groups.’’ MACS Briefing, 2015. Refrigerants in Leak-Tight Systems In Climates with 39 36 EPA–HQ–OAR–2014–0198–0077. Because the MVAC system used is so closely High Fuel Prices and Long, Hot and Humid Cooling related to vehicle design, we are using model years 37 Daimler, 2014. Seasons. Building on the Previous Success of and not calendar years.

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that do not have infrastructure in place analysis considered the practices used to transition. Commenters also provided for servicing with other acceptable by the automobile manufacturing information that the vehicle redesign is refrigerants. This narrowed use limit industry in introducing new not ‘‘locked-in’’ until two years before will be in place through MY 2025. technologies into their vehicles through the model year. EPA understands that This change of status applies to manufacturing redesign changes and because MY 2016 vehicles are being MVAC systems for passenger cars and refresh cycles. For each vehicle model, produced in the 2015 calendar year, this light-duty trucks as defined at 40 CFR manufacturers establish a product means most manufacturers have 86.1803–01, referred to jointly in this development cycle over which they ‘‘locked-in’’ their planned product FRM as light-duty vehicles. As plan any significant technological designs for MY 2016 and MY 2017, or discussed in the NPRM and above, three changes or ‘‘redesigns’’ to that vehicle. potentially even out to MY 2018.44 EPA alternatives currently on the SNAP list Between the major redesign model did not receive information on why of substitutes that are acceptable, years, they may make only minor manufacturers cannot redesign models subject to use conditions—HFC–152a, ‘‘refresh’’ changes.41 At any point in that are not yet locked-in or why MVAC CO2, and HFO–1234yf—are in use or time, a manufacturer may have some system redesign cannot occur during a under various stages of development vehicles at or approaching a major product refresh for those models that are and have significantly lower GWPs than redesign point and others that are earlier locked-in. According to the 2014 survey HFC–134a. Use conditions for these in their product cycle. of the automobile industry, substitutes mitigate flammability and In developing the LD GHG standards, manufacturers who participated in the toxicity risks, as relevant, and thus for EPA assumed that the transition to study indicated that they already expect the other factors EPA evaluates, there alternative refrigerants would generally to have transitioned 90% of the fleet by was not an appreciable difference in need to occur during manufacturer MY 2021. We did not receive any risk. Because HFC–134a has a model redesigns because of changes to information indicating it was not significantly higher GWP than HFC– the system design that are needed to technically feasible to also transition the 152a, CO2, and HFO–1234yf, and allow the safe use of these alternatives remaining 10% of models by MY 2021. because the use conditions for these consistent with the regulatory use EPA expressly requested specific 42 three refrigerants ensure that other risks conditions. EPA used the overall information supporting claims that a are not appreciably higher than for typical industry redesign cycle of five transition by MY 2021 would not be HFC–134a, we are listing HFC–134a as model years to estimate how the technically feasible because specific unacceptable for use in MVAC systems expected industry-wide transition to model vehicles cannot be redesigned to in new light-duty vehicles in MY 2021. new refrigerants might occur. Thus, EPA safely use alternative refrigerants by MY Without the use conditions these projected that the industry, in order to 2021. No such information was other substitutes do not pose overall safely make use of the credits offered for forthcoming. Although one lower risk than HFC–134a. Thus, in use of lower-GWP refrigerants, would manufacturer did provide information deciding when the unacceptability fully transition to these refrigerants over on the increase in cost to transition for determination should apply, we the time between MY 2017 and MY a particular type of vehicle that was considered when it would be feasible 2021, beginning with 20 percent originally not planned for a refrigerant for manufacturers to develop systems transition in MY 2017, to be followed by change by MY 2021,45 commenters did meeting the use conditions. We a 20 percent increase in substitution in not submit specific information, proposed MY 2021 while also each subsequent model year, completing confidential or otherwise, that showed it transition in MY 2021.43 EPA continues requesting comment on MY 2017, MY would not be technically feasible for to rely on the projections made in 2019 and MYs later than 2021. As any specific model vehicles to adjust support of the LD GHG Rule as well as explained in the NPRM, EPA considers their redesign cycle, switch refrigerants all other information currently available MY 2021 the date by which automobile mid-cycle, or switch during a refresh. to the Agency to support the decision in manufacturers will be able to redesign After thoroughly reviewing all of the this action that MY 2021 is the MY by all vehicle models (including design of information in the possession of the which it will be feasible for the MVAC systems) for use with a Agency, EPA did not find a technical manufacturers to safely, but lower-GWP alternative, consistent with basis for extending the change of status expeditiously, transition MVAC systems the use conditions. date beyond MY 2021. We believe the for all light-duty vehicle models. EPA previously considered the model information in the record supports a EPA proposed to modify the listing of year by which manufacturers of light- conclusion that it is feasible for vehicles HFC–134a to unacceptable as of MY duty vehicles would be able to and the associated MVAC systems to be 2021 for light-duty vehicles, and sought transition away from use of HFC–134a redesigned to safely use alternative comment on MYs 2017, 2019, and MYs in support of the greenhouse gas and refrigerants by MY 2021. later than 2021. Some commenters fuel economy standards for MY 2017– EPA also received comments on this argued that full transition cannot occur 2025 light-duty vehicles issued jointly rule requesting an earlier change of by EPA and NHTSA on August 28, until after MY 2021 because a limited number of models do not currently have 2012.40 As part of that rulemaking, EPA 44 Global Automakers, in their comments on the established the availability of credits for plans in place to transition by MY 2021. NPRM, stated, ‘‘These major model re-designs the use of alternative refrigerants with For these models, commenters claimed typically occur every five or six model years, and are staggered year-by-year so that the lower GWPs than that of HFC–134a that two full design cycles, which could take 10 years, will be necessary in order manufacturer’s full product line is refreshed over towards meeting the LD GHG standards. time rather than all at once. Because of the need to For today’s action, EPA relied on the lock in suppliers to support production well in 41 analysis conducted in support of the LD See 77 FR 62712 and 75 FR 25407, 25451 for advance, vehicle designs are usually locked in a more detailed discussion of this practice. about two years before the model year.’’ EPA–HQ– 42 GHG standards for MYs 2017–2025. The As previously noted, HFO–1234yf, CO2 and OAR–2014–0198–0207. HFC–152a are all listed as acceptable subject to use 45 As explained in more detail in the responses 40 77 FR 62624, 62807–810 (October 15, 2012); conditions and many of the use conditions address to comments, under the SNAP criteria for review in see also 75 FR 25325, 25431–32 (May 7, 2010) the design of systems to account for flammability 40 CFR 82.180(a)(7), the only cost information that (discussing the same issue for MY 2012–2016 light- or exposure. EPA considers as part of its SNAP review is the duty vehicles) 43 77 FR 62720. ‘‘cost and availability of the substitute.’’

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status date based on the availability of (b) Refrigerant Blends unique fittings for each alternative alternative refrigerants and the fact that In today’s action, EPA is also refrigerant. These fittings are found at transition is already occurring in the finalizing changes to the listing status of attachment points on the car itself, on United States and globally. The SP34E, R–426A, R–416A, R–406A, R– all recovery and recycling equipment, available information indicated that 414A (also known as HCFC Blend Xi or on can taps and other charging many of the models that have already GHG–X4), R–414B (also known as HCFC equipment, and on all refrigerant transitioned are being sold in Europe Blend Omicron), HCFC Blend Delta containers. The purpose of these fittings rather than in the United States. There (also known as Free Zone), Freeze 12, is to prevent cross-contamination. Using is no information showing that it is GHG–X5, and HCFC Blend Lambda an adapter or deliberately modifying a technically feasible for all or most (also known as GHG–HP) from fitting to use a different refrigerant is a models to transition to alternatives acceptable to unacceptable for use in violation of these use conditions. If used safely by MY 2017 or MY 2019, which newly manufactured light-duty motor properly, the unique fittings will not allow for the introduction of HFC–134a begin in 2016 and 2018 respectively. As vehicles beginning in MY 2017, as refrigerant to an HFO–1234yf system. discussed below in the responses to proposed. The GWPs of HFC–152a, Furthermore, the SNAP regulations comments, MY 2021 is the earliest year HFO–1234yf, and CO2 are significantly lower than those of the refrigerant prohibit using a substitute refrigerant to that we find provides sufficient time to ‘top-off’ a system that uses another transition refrigerant during vehicle blends and all but two of these blends have ODPs, whereas HFC–152a, HFO– refrigerant and the SNAP use conditions redesign cycles or to plan a mid-cycle for refrigerants in this end-use require 1234yf, and CO2 do not. Moreover, if transition to alternatives that ensures that the original refrigerant be safety through compliance with SNAP used consistent with the established use conditions, the three lower-GWP recovered, in accordance with use conditions. refrigerants do not pose greater overall regulations issued under section 609 of We also considered the supply of the risk than any of the refrigerant blends. the CAA, prior to charging with a alternative refrigerants in determining At the time of the proposal, EPA was substitute (40 CFR 82.34). Thus, the when alternatives would be available. not aware of current or projected future SNAP use conditions prohibit adding a At the time the light-duty GHG rule was use of these refrigerant blends in any new refrigerant to the system without promulgated, there was a concern about MVAC systems in newly manufactured first recovering the refrigerant already in the potential supply of HFO–1234yf. light-duty vehicles. We did not receive the system. Some commenters indicated that supply any comments providing information For vehicles for which the manufacturer counts air conditioning is still a concern, while others, suggesting current or projected use of credits toward its LD GHG compliance, including two producers of HFO– these refrigerant blends in any newly- the MVAC systems (or elements of those 1234yf, commented that there will be manufactured light-duty MVAC systems and received several comments systems) are considered emission- sufficient supply. Moreover, some related components as defined in 40 automotive manufacturers are supporting this aspect of the proposal. EPA is changing the listing status for the CFR 86.1803. This designation includes developing systems that can safely use provisions for emission-related refrigerant blends to unacceptable for other substitutes, including CO2, for warranty, requirements that they use in new light-duty vehicles as of MY which there is not a supply concern for operate properly for the specified useful 2017, the next model year in production the refrigerant. If some global light-duty life, as well as tampering restrictions. after this rule is issued. motor vehicle manufacturers use CO2 or For example, if a manufacturer claims another acceptable alternative, 3. MVAC Servicing air conditioning credits for an MVAC additional volumes of HFO–1234yf that EPA did not propose and is not system that uses a lower-GWP would have been used by those making any changes that would alter the refrigerant on a particular vehicle as manufacturers will then become ability to service existing motor vehicles part of the LD GHG program, removing available. Based on all of the designed to use HFC–134a or a and replacing that refrigerant with any information before the Agency, EPA refrigerant blend.46 other refrigerant that has a higher GWP, believes production plans for the MVAC systems designed to use lower- including HFC–134a, would be refrigerants are in place to make GWP substitutes and installed in considered tampering with an emission- available sufficient supply no later than vehicles will need to be serviced. Some related component under Title II of the MY 2021 to meet current and projected stakeholders and commenters have CAA. demand domestically as well as abroad, expressed a concern that the price 4. Would this action affect EPA’s LD including, but not limited to, the EU. differential between HFO–1234yf and GHG Rule? HFC–134a provides an economic Based on information the Agency In their comments, AAM stated that incentive to replace HFO–1234yf with possessed at the time of the proposal ‘‘EPA should state clearly and HFC–134a during servicing.47 HFC– and additional information submitted unequivocally in the final rule that EPA during the comment period regarding 134a is listed, and will remain listed, as is committed to continuing the A/C the technical feasibility of transitioning an acceptable refrigerant for retrofit of credits through MY 2025 and beyond.’’ the fleet of light-duty vehicles and existing systems designed to use CFC– Global Automakers made a similar refrigerant supply, we conclude that MY 12, but because of the use restrictions request. EPA in fact stated in the NPRM, 2021 represents the time by which other for refrigerants listed as acceptable, it and reiterates here, that nothing in this alternative refrigerants that pose less cannot be used as a retrofit for MVAC final rule changes the regulations overall risk than HFC–134a can be used systems using other alternatives. establishing the availability of air in all light-duty vehicle models Specifically, the SNAP listings for all conditioning refrigerant credits under consistent with the use conditions. MVAC refrigerants require the use of the GHG standards for MY 2017–2025, Thus, MY 2021 is the time at which found at 40 CFR 86.1865–12 and 1867– 46 EPA is also clarifying that thermostatic those alternative refrigerants will be expansion valves (TXVs) are not impacted by 12. Those standards and credits are ‘‘available’’ within the meaning of CAA today’s action. established by rule and EPA did not section 612(c)(2). 47 See also 77 FR 62807. reopen that rule in this proceeding.

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Thus, manufacturers can generate intermediate uses, such as formulation amount of time will be needed before credits from use of lower-GWP or packaging for other subsequent uses.’’ the necessary infrastructure is in place. alternative refrigerants through MY Charging a MVAC system with Therefore, under this final rule, the 2025, and the ability to generate and use refrigerant during the manufacturing of narrowed use limit will no longer be those credits towards compliance with a vehicle in the United States is available beginning with MY 2026 the LD GHG standards will not change considered a ‘‘use’’ under the SNAP vehicles. under this final rule. 48 We do note program. This is consistent with our 6. How is EPA responding to comments further, however, that the LD GHG statement in the initial SNAP rule that concerning this end-use? standards do not require any specific ‘‘Substitutes manufactured within the means of compliance, so that U.S. exclusively for export are subject to (a) Timeline manufacturers have the flexibility to SNAP since the definition of use in the Comment: EPA received several either switch refrigerants or to comply rule includes use in the manufacturing comments on the current and projected with the standards by other means. If a process, which occurs within the United pace of adoption of alternative manufacturer chooses to comply with States.’’ (59 FR 13052; March 18, 1994) refrigerants. Several commenters stated the LD GHG standard by a strategy not (b) Narrowed Use Limit for MVAC that transition to HFO–1234yf is already involving refrigerant substitution, for Based on comments received, we occurring. Honeywell commented that MY 2021 and later vehicles, this final there are approximately 28 different rule would still require the understand that certain countries to which vehicles are exported do not, and automobile brands selling around 60 manufacturer to use refrigerant other different models designed to use HFO– than HFC–134a. may not for some period of time, have in place the infrastructure for servicing 1234yf globally and that more than a 5. How will the change of status apply MVAC systems with flammable dozen models are being manufactured to exports of MVAC systems? refrigerants. Because this raises by U.S. manufacturers. Other commenters provided similar statistics. (a) SNAP Interpretation concerns with the safe usage of HFC– 152a and HFO–1234yf, we have One of these commenters, DuPont, Under 40 CFR 82.174, no person may determined that there may be estimated that globally, more than 7 introduce a refrigerant substitute into circumstances in which alternatives that million vehicles using alternatives other interstate commerce without notifying pose lower overall risk to human health than HFC–134a will be on the road by EPA 90 days in advance. Our and the environment will not be the end of 2015. They also commented longstanding interpretation of this available for MVAC systems in those that in addition to infrastructure being regulatory provision is that the vehicles by MY 2021. Therefore, EPA is in place at vehicle assembly plants, notification requirement applies to providing a narrowed use limit for equipment suppliers are already products manufactured in the United MVAC systems that applies to vehicles producing the under-hood, in-factory, States and exported. EPA has defined being exported to countries that do not and service equipment necessary for the interstate commerce in our labeling have infrastructure to service vehicles transition. regulations at 40 CFR 82.104(n) as: ‘‘The containing the alternatives found to AAM and Global Automakers distribution or transportation of any pose less overall risk. ‘‘conducted an industry survey to create product between one state, territory, Under a narrowed use limit, the a ‘non-confidential’ blinded summary of possession or the District of Columbia, manufacturer needs to ascertain that individual manufacturer refrigerant and another state, territory, possession these other alternatives are not changeover plans.’’ 49 Ten automobile or the District of Columbia, or the sale, technically feasible because of the lack manufacturers, representing 85% of use or manufacture of any product in of infrastructure for servicing with the light-duty vehicles sold in the United more than one state, territory, alternative refrigerants and document States in MY 2013, submitted possession or the District of Columbia. the results of their analysis. See 40 CFR information. The survey found that out The entry points for which the product 82.180(b)(3). Users are not required to of 139 vehicle platforms, manufacturers is introduced into interstate commerce report the results of their investigations currently plan to transition 90% of the are the release of a product from the to EPA, but must retain the models by MY 2021. facility in which the product was documentation in their files for the Response: EPA recognizes some manufactured, the entry into a purpose of demonstrating compliance. manufacturers have already transitioned warehouse from which the domestic Documentation should include to use of HFO–1234yf in a limited manufacturer releases the product for descriptions of: number of models. In the United States sale or distribution, and at the site of • Products in which the substitute is the transition began in a small number United States Customs clearance.’’ needed; of MY 2013 vehicles, and increased in While this definition appears in EPA’s • Substitutes examined and rejected MY 2014 50 and MY 2015. As of the labeling regulations, EPA’s practice is to for the destined country; beginning of 2015, the U.S. fleet was use it for purposes of the SNAP program • Reason for rejection of other continuing on a trajectory that we as well. See e.g., 76 FR 78846, December alternatives; and expect to achieve 20% adoption by MY • 20, 2011 (‘‘This definition applies to any Anticipated date other substitutes 2017, which aligns with EPA’s appliances produced in the United will be available and projected time for projection in the supporting documents States, including appliances that will be switching. for the light-duty GHG rule.51 While exported.’’) Based on the comments received, EPA adoption is occurring in the United In addition, under the SNAP does not anticipate that a significant States, most of the estimated 7 million regulations EPA regulates ‘‘use’’ in the number of countries will lack the vehicles mentioned by DuPont are in United States and ‘‘use’’ is defined at 40 necessary infrastructure needed to Europe where the EU MAC Directive CFR 82.172 to include ‘‘use in a service MVAC systems with the alternatives for which the equipment is manufacturing process or product, in 49 EPA–HQ–OAR–2014–0198–0207 and EPA– consumption by the end user, or in designed by MY 2021. Also, based on HQ–OAR–2014–0198–0113 the comments received, we do not 50 Nelson, 2013. 48 See 77 FR 62804–809. believe that an extensive additional 51 77 FR 62720.

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mandates transition to refrigerant with a for changing the listing status of HFC– achieved with an earlier transition. GWP below 150 by January 1, 2017. 134a in MVAC. Several commenters These commenters stated that MY 2021 The Agency recognizes and support accelerating the proposed would not provide benefits beyond appreciates the factual information transition to earlier than MY 2021, and those achieved under ‘‘business as supplied by the commenters, including recommended implementation dates of usual.’’ the information shared as a result of the MYs 2017, 2018, and 2019. Many cited Response: EPA agrees with the 2014 industry-led survey conducted by the progression of transition in the EU, commenters that suggested that an AAM and Global Automakers. EPA’s as well as the transition already seen in earlier transition year would result in responses to the comments submitted by the United States as a result of EPA’s LD greater environmental benefits to the AAM and Global Automakers within the GHG Rule in support of an earlier extent that it would result in earlier context of the survey are provided transition timeframe. Honeywell, a reduction of use of HFC–134a in MVAC. below. EPA relied on all of the producer of HFO–1234yf, commented However, in considering whether other information in our possession as we ‘‘that given manufacturers’ experience listed alternatives are available that pose made our decision on the change of in the EU and United States there is lower overall risk, EPA needs to status for HFC–134a. already an understanding and capability consider whether there are any Comment: Several commenters noted to transition vehicles for U.S. car technical challenges that would prevent that the transition from CFC–12 to HFC– production’’ and they recommended a use of those alternatives consistent with 134a was achieved in about three to four transition date of MY 2018. DuPont, the use conditions which are necessary model years and claimed that the another producer of HFO–1234yf, stated to ensure that they pose lower risk than transition from HFC–134a to lower-GWP ‘‘there are no technology, supply or HFC–134a. EPA does not agree that a alternatives could also happen in the engineering barriers to rapid transition’’ safe, smooth transition in compliance same timeframe. and recommended a transition date of with the use conditions required for the Response: Regarding the comments MY 2019. EIA commented that there is lower-GWP alternatives can be made for suggesting that the current transition no reason to delay the change in status all vehicles prior to MY 2021 in the could occur in a similar period of time and recommended MY 2017 as the United States. This is based on the need to the transition from CFC–12 to HFC– implementation date. Two commenters, to transition most vehicles during 134a for MVAC, EPA disagrees because NRDC and IGSD, jointly commented redesign cycles, which in many cases the system changes required for this that EPA should adopt MY 2017, a requires hardware changes, as discussed transition are more extensive than those deadline that would be set based on the above. EPA has also considered the required for the transition from CFC–12 leaders in the industry that are already potential benefits to aligning our to HFC–134a. It is EPA’s understanding, using safer chemicals, rather than the domestic transition to the EU’s, in light as confirmed by comments, such as laggards. Effective Altruism at the of the fact that the transition to MVAC those from the automobile associations, University of Maryland commented that systems using one of the three that many models will need to HFC–134a should be listed as alternatives began earlier than we transition during a redesign cycle. predicted, and in light of the adequate EPA understands that many model unacceptable as of January 2017, and supply of alternatives. Based on our types will require hardware changes the California Air Resource Board that normally occur during a redesign, (CARB) commented that MY 2018 is a current understanding and the unlike the transition from CFC–12 to reasonable timeframe for the information provided by commenters, HFC–134a. HFO–1234yf has a slightly unacceptable listing to apply. especially the automobile lower cooling efficiency than that of Some commenters stated that aligning manufacturers, the Agency has HFC–134a; offsetting this efficiency with the EU transition by January 1, concluded that MY 2021 is the earliest difference usually requires hardware 2017, will signal to the international date by which all model vehicles can be changes, specifically the incorporation community that the United States is safely transitioned to lower-GWP of an internal heat exchanger and taking steps to ‘‘promote the rapid alternatives in accordance with the use potentially other system adjustments, deployment of climate-friendly and safe conditions. which in some cases could result in alternatives in motor vehicle air We note that even though we are changes to overall air conditioning conditioning’’ as agreed to in the establishing MY 2021 as the date by Leaders’ statement at the G–7 Summit in which HFC–134a will be system design and layout. CO2 MVAC 52 systems will require significantly more June 2014. Some commenters suggested unacceptable, EPA expects health and hardware changes, which in many cases an accelerated transition date is needed safety benefits will be realized sooner, is expected to result in changes to the to achieve the President’s as manufacturers will be designing new system design and layout. This environmental goals, and would have a models each year using lower-GWP transition contrasts with the case of the significant trickle-down effect in other refrigerants for MVAC. The benefits transition in the 1990s from CFC–12 to markets around the world, specifically analysis provided with the NPRM (EPA, HFC–134a, where the systems did not commenting that selecting MY 2017 2014) and the analysis associated with require changes to the components of would encourage Japan to ‘‘set the same this final action (EPA, 2015b) use a the MVAC system, besides the fittings, global motor vehicle air-conditioning ‘‘business as usual’’ scenario that allowing manufacturers to switch many phaseout schedule for HFC–134a.’’ Also, assumes a transition in refrigerant for vehicles mid-cycle. Some models were NRDC and IGSD commented that MVAC will occur for vehicles already being manufactured using HFC– ‘‘matching the MY 2017 European manufactured and sold in the United 134a as early as 1992, with a significant schedule is protecting against American States, in order to be consistent with the proportion already being manufactured automakers finding themselves LD GHG Rule, and that assumes no with HFC–134a by the time that EPA unprepared when other markets close regulatory action, and thus no benefits, listed it as acceptable in the initial their doors to automobiles made with under SNAP. However, our analysis of SNAP rule (59 FR 13044; March 18, HFC–134a.’’ Some commenters stated 52 As noted elsewhere, we are creating a narrowed 1994). that the transition can be achieved by an use limit for vehicles exported to countries without Comment: EPA received several earlier date and that greater adequate facilities for servicing vehicles with the comments related to the proposed time environmental benefits would be other acceptable alternatives.

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the effects of a change of status for Comment: Several commenters more than one vehicle model in the MVAC as of MY 2021 shows some supported transition in MY 2025 or United States has been transitioned to benefits beyond the ‘‘business as usual’’ later, including AAM, Global HFO–1234yf, in compliance with the scenario, reflecting the use of lower- Automakers, NADA and Mexichem. The SNAP use conditions, between GWP refrigerants in exported vehicles. majority of these commenters stated that scheduled redesign cycles. Although it While not relevant to EPA’s decision reengineering and system design would not be feasible to expect most regarding the appropriate date for requirements for alternative refrigerants models to transition mid-redesign cycle, changing the status of HFC–134a for use require significant lead time and for such a small number of models, this in MVAC, EPA also agrees its action to necessitate transition during a vehicle is likely to be feasible. EPA did not change the status of HFC–134a will send redesign cycle. Commenters stated that receive any information that provides a valuable signal to the international two full design cycles lasting beyond specific and sufficient information to community regarding the continued use MY 2021 may be necessary in order to show that transition by MY 2021 is not of high-GWP alternatives. complete the transition due to timing of technically feasible for any specific Comment: NRDC and IGSD suggested publication of the proposed status model vehicle. One automobile that EPA set a status change date as of change rule, and the relationship of that manufacturer provided information MY 2017, and address any sub-sectors to where manufacturers are in the claimed as confidential concerning that have problems meeting a transition redesign cycle for each model. Global vehicles used for a specific purpose but date earlier than MY 2021 through a Automakers commented that the vehicle did not provide sufficient justification narrowed use limit. EIA recommended redesign cycle is usually locked in about that transition by MY 2021 was not transition in MY 2017 and suggested two years before the model year. feasible for technical reasons. EPA is EPA grant a limited exemption until MY Commenters supporting a transition aware of two automobile manufacturers 2021 for companies who publicly date of MY 2025 or later also that will have the majority of their U.S. pledge to convert to CO2 systems. commented that a later date would align fleet transitioned by MY 2016. EPA is Response: EPA is not finalizing with the existing LD GHG Rule with no also aware of several automobile today’s rule with a change of status for measurable environmental impact at manufacturers intending to transition all HFC–134a as of MY 2017, as stake, and address supply concerns. of their vehicle models by MY 2021. recommended by these commenters. As With regard to the 10% of vehicle While the AAM and Global discussed above, it is our understanding platforms identified in the 2014 Automakers survey does not indicate that because of the necessary changes to industry survey as planning to the impetus for the transition plans for hardware, manufacturers will need to transition after MY 2021, AAM, and the various manufacturers and models, transition most vehicles during a Global Automakers commented that EPA assumes the plans were adopted in redesign cycle. Although in some cases those are not all small volume platforms response to the credits offered under where less extensive hardware changes and the production will account for a EPA’s LD GHG Rule. EPA further are required, it will be possible to small, but not insignificant percentage assumes these transition plans were transition mid-cycle, it is not reasonable of production after MY 2021. based on strategic utilization of credits to expect that most manufacturers will available under the rule as a flexibility be able to do so. Achieving a transition Response: Regarding comments by measure, rather than technical by MY 2017, approximately one year AAM, Global Automakers, and feasibility of transition, and EPA did not from now, would not be feasible for any Mexichem suggesting that two full receive any information to the contrary. manufacturers that had not already design cycles, extending past MY 2021, Comment: AAM stated that a MY started transition planning before would be needed to transition all 2025 transition date would issuance of the NPRM, and in such a vehicle models to alternative accommodate ‘‘run-out’’ models. circumstance, we do not consider it refrigerants, the commenters failed to ‘‘Run-out’’ models are defined as reasonable to require compliance based provide any specific, technical support models that, for a variety of reasons, on actions that would have been for such a claim. EPA appreciates the will continue to be produced and necessary before issuance of the NPRM. submission of 2014 survey data marketed without any updates to major Rather than setting a change of status indicating that automobile vehicle sub-systems, including AC date that we expect manufacturers may manufacturers have plans in place to systems. Commenters indicated that to have difficulty meeting, we are setting transition 90% of vehicle models to require an early end of production for the change of status date at the earliest alternative refrigerants by MY 2021. such run-out models would increase the model year by which the best However, the commenters did not levels of stranded investment associated information indicates that all model provide support or an explanation of with ending the production of such vehicles can be safely transitioned to why it will not be technically feasible to models prematurely. lower-GWP alternatives in accordance transition each of the remaining Response: Commenters did not with the use conditions. individual models by MY 2021. indicate what portion of the vehicle Concerning EIA’s suggestion for a According to commenters, the vehicle models with current plans to transition limited exemption until MY 2021 for redesign is locked in two years before in MYs after 2021 is made up of ‘‘run- companies who publicly pledge to the model year; therefore, time still out’’ models, if any, as compared to convert to CO2 systems, because we exists to make the necessary alterations other models captured in the results of have set MY 2021 as the status change to MY 2017, MY 2018 and later the industry survey. In the proposed date for all vehicles, there is no need for vehicles. While we believe it would be rule, EPA requested comment on an exemption related to adoption of CO2 possible for the majority of models to changing the status of HFC–134a in a MVAC systems. transition by MY 2021 during a redesign MY later than 2021, ‘‘including specific Comment: A private citizen cycle, EPA is aware that sometimes it is information supporting claims that a commented in support of a MY 2021 technically feasible to transition transition by MY 2021 would not be change of status. between redesign cycles during a mid- technically feasible because specific Response: EPA is finalizing a MY cycle redesign, or refresh. A model vehicles cannot be redesigned to 2021 transition date for the reasons manufacturer shared with EPA safely use alternative refrigerants by MY previously stated. information claimed as confidential that 2021.’’ EPA did not receive this type of

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information. EPA is not aware of any to accommodate infrastructure for both expect to be capable of providing a technical barriers that preclude refrigerants. sufficient supply of HFO–1234yf for transition of ‘‘run-out’’ models by MY Response: EPA understands that there complete U.S. transition away from 2021 given the time available between are challenges associated with HFC–134a starting with MY 2018. In now and MY 2021 to implement a transitioning refrigerants. EPA is also support of a MY 2017 transition date, transition for these models. aware that prior to issuance of the NRDC and IGSD commented that the Comment: Commenters indicated the NPRM, manufacturers were planning a supply of alternatives (HFO–1234yf and challenges associated with designing gradual, model-by-model transition, in others) is not a constraint; they believe MVAC systems to use alternative which some models would be filled EPA correctly recognizes that refrigerants, especially CO2. AAM with HFC–134a while others are filled ‘‘production plans for the refrigerant provided information on the hardware with HFO–1234yf or another alternative appear to be in place to make it changes and component supply, as well refrigerant at the same plant. available in volumes that meet current as industry standards needed for MVAC Comment: In the proposed rule EPA and projected domestic auto industry requested specific information systems to use CO2. AAM commented demand.’’ that ‘‘a MY 2025 date would allow extra supporting claims that a transition by Response: EPA appreciates MY 2021 would not be technically time for commercialization of CO2 information provided by commenters MVACs.’’ feasible because specific model vehicles supporting EPA’s understanding at the cannot be redesigned to safely use time of the proposal that sufficient Response: EPA is aware that CO2 systems require significantly more alternative refrigerants by MY 2021. supply will be available to support a complex redesign and hardware AAM commented stating that ‘‘EPA did transition in MY 2021. The companies development than HFO–1234yf systems, not properly consider confidentially producing HFO–1234yf commented that submitted information that alternatives primarily because the operating sufficient supplies should be available will not be available until after MY pressures of these systems will be for MY 2018 or 2019, indicating that 2021.’’ significantly higher than that of a HFC– there will be sufficient supplies prior to Response: EPA has considered MY 2021. In addition, the commenter 134a system. Therefore, EPA information provided to the Agency and understands that incorporation of CO submitted additional information to the 2 claimed as confidential as support for Agency that they claimed as MVAC systems would most likely need this and other decisions that are part of to occur during product redesign, not confidential and that further supports this action. As described elsewhere in that adequate supply will be available product refresh. At least one this section, EPA did not receive by MY 2021. manufacturer has stated that it plans on sufficient information, whether claimed Comment: Several commenters using CO2 systems. These systems are confidential or not, to conclude that supported MY 2025 or later, expressing currently in prototype phase, and we other alternatives cannot be used concerns about ongoing uncertainty in understand that there may be significant consistent with their use conditions by sufficient supply of HFO–1234yf for a technical hurdles yet to overcome. MY 2021. full U.S. transition by MY 2021 due to However, those pursuing this option Comment: Many commenters limited production, as well as lack of have announced plans to introduce cars provided comments about the impact competition, artificial constraints, and in Europe with CO2 MVAC systems as the supply of acceptable alternatives other factors. Arkema commented that early as MY 2017. This timing allows for could have on the timeline for they estimate the global demand for several years after initial deployment of transition. Several commenters believe HFO–1234yf in 2021 will be around these systems for automobile there is enough supply of alternatives to 45,000 metric tons and they believe manufacturers to redesign models prior transition prior to MY 2021. Honeywell and DuPont will only be able to the MY 2021 date in the United The comments submitted by to supply half that amount. Arkema States. Honeywell and DuPont, current commented that the supply shortage Given the transition plans in place, suppliers of HFO–1234yf, indicate that would cause a serious dislocation in EPA disagrees that other alternatives, both companies are confident in their supply and demand (i.e., willing buyers including CO2, cannot be used ability to supply enough HFO–1234yf to would be unable to find willing sellers consistent with the use conditions by support a full transition by MY 2018 of HFO–1234yf) and having only two MY 2021. However, even if a particular and MY 2019, respectively. According suppliers would create highly restricted alternative could not be used in some or to comments submitted by Honeywell competitive conditions. Arkema also any vehicles consistent with the use ‘‘there is one commercial scale HFO– commented that the manufacturer has conditions by MY 2021, for the reasons 1234yf production plant operating today not publicly announced production already provided, we have determined in China, a second one is expected to be capacities for the coming years and EPA that other alternatives can be safely used commissioned in the first half of 2015 has not provided reliable evidence, and consistent with the use conditions by in Japan via a strategic supply none exists, that adequate volumes of MY 2021. Because alternatives that pose relationship between Honeywell and HFO–1234yf are or will be available to lower risk than HFC–134a will be Asahi Glass Company Ltd, and a third ‘‘meet current and projected domestic available by MY 2021, we do not believe world-scale plant will be commissioned auto industry demand.’’ Global there is a basis for selecting a later date by Honeywell by the end of 2016 in Automakers commented that it is too for changing the status of HFC–134a. Geismar, Louisiana.’’ DuPont submitted soon to conclude that there will be Comment: AAM raised concerns similar comments on announced or adequate supplies of alternative about the transition of manufacturing planned production capacity in Asia, refrigerants to meet U.S. demand as well facilities and the need to modify or the United States and Europe by as other possible demands for upgrade refrigerant storage facilities and multiple producers, including DuPont, alternative refrigerants worldwide by charging stations on assembly lines. Honeywell, and Asahi Glass Co. (AGC), MY 2021. Also, the commenters stated that indicating that production will begin in Response: Based on EPA’s because many manufacturing facilities 2015–2017 at most of these facilities. understanding of refrigerant supply at produce multiple vehicle models, some CARB commented that they the time of the proposed rule, the plants may not have the space necessary understand that chemical manufacturers information received from commenters

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in response to the proposed rule, and registered by Honeywell, continue to be manufacturer considering HFC–152a information claimed as confidential and a barrier to the effective development of and HFO–1234yf in MVAC systems provided during meetings, EPA remains HFO–1234yf.’’ Arkema commented that using secondary loops (Andersen et al., confident that sufficient supply of EPA overlooks the considerable efforts 2015). As noted elsewhere in this final alternatives will exist to transition that Honeywell has undertaken to action, EPA is aware of ongoing research MVAC systems in all new light-duty maintain its exclusive control over the and development which could vehicles manufactured in the United manufacture of HFO–1234yf. Arkema ultimately result in future listings of States by MY 2021. EPA is fully aware commented that ‘‘Although legal additional alternatives and notes that of delays with the launch of some proceedings and investigations since the issuance of the proposal the production facilities prior to the regarding Honeywell and DuPont’s Agency received a submission for one implementation of the European Union exclusive control of HFO–1234yf are additional MVAC alternative. regulations. However, EPA notes that underway at the European Commission, (b) Interaction With EPA’s LD GHG Rule those facilities are now online and are the Federal Trade Commission, the U.S. producing supplies well in excess of Patent & Trademark Office, and Comment: EPA received several what is needed to meet EU demand. elsewhere, those proceedings and comments related to the interaction of They are not currently operating at full investigations are not yet resolved.’’ this rulemaking with EPA’s LD GHG capacity. Moreover, Honeywell and Arkema stated that ‘‘until those Standards. Commenters requesting a DuPont, two producers of HFO–1234yf, investigations are resolved, Honeywell MY 2025 or later transition, including provided information regarding plans to and DuPont will control the AAM, Global Automakers, the National launch additional facilities, one of manufacture of HFO–1234yf and will Automobile Dealers Association which will be a joint effort between impose restrictive supply conditions, all (NADA), and Mexichem, commented Honeywell and a third chemical with the apparent de facto endorsement that the later date would preserve the manufacturer, AGC.53 For these reasons, of the EPA in violation of the Sixth integrity and commitments made under EPA does not agree with commenters Principle to ‘‘not endorse products the GHG program, preserve the that there will be an insufficient supply manufactured by specific companies’’. compliance flexibilities granted to of alternatives by MY 2021. Further, Arkema adds that this will slow the automakers and provide the same EPA is also aware of public transition to HFO–1234yf and add to its environmental benefits. Commenters announcements by Arkema indicating cost. stated that a MY 2025 transition allows for full compliance flexibility, in planned production in 2017 of HFO– Response: EPA is aware that 54 addition to credits, allotted to 1234yf. proceedings and investigations are Comment: Commenters indicated manufacturers in the vehicle GHG occurring related to the patents on concern because available supply of rulemakings throughout MYs 2012– HFO–1234yf; however, EPA is not HFO–1234yf will need to go to Europe 2025. AAM requested that EPA ‘‘state involved and cannot comment on these for the January 1, 2017, transition before clearly and unequivocally that EPA is proceedings. EPA believes that based on automobile manufacturers will have committed to continuing the A/C credits the information available today, access to supply to transition in the through MY 2025 and beyond’’ and sufficient supply will be available of United States. These commenters asked EPA to include this certainty in HFO–1234yf for a full transition in MY believe a MY 2025 or later transition the regulatory text of the final SNAP 2021 for new light-duty MVAC systems date would allow sufficient time to rule and not just in the preamble. even if all manufacturers choose to use alleviate supply concerns. Response: Nothing in this final rule Response: EPA does not agree that the HFO–1234yf. Regarding the comment changes the regulations establishing the January 1, 2017, transition in the EU that this action is in violation of the availability of air conditioning will limit supply in the United States. ‘‘Sixth Principle,’’ we disagree that EPA refrigerant credits under the GHG The SNAP transition date is several endorsed HFO–1234yf or the companies standards for MY 2017–2025, found at years after the transition in the EU will producing it by its inclusion on the list 40 CFR 86.1865–12 and 1867–12. The be complete and, as noted above, the of acceptable substitutes for the MVAC stringency of the standards remains manufacturers of HFO–1234yf have end-use at issue in this action. HFO– unchanged. As stated above, provided information supporting that 1234yf is one of three acceptable lower- manufacturers may still generate and supply will be adequate by MY 2021. GWP alternatives and EPA does not utilize credits for substitution of HFC– EPA does acknowledge that supply in believe it is appropriate to assume 134a through the 2025 model year. the United States would likely not be manufacturers will use only HFO– Further, this final rule is also not in

adequate by MY 2017. The main 1234yf. In addition to HFO–1234yf, CO2 conflict with the Supplemental Notice suppliers of HFO–1234yf stated as much and HFC–152a are listed as acceptable of Intent (76 FR 48758, August 9, 2011) in their comments. and the manufacturers can choose that described plans for EPA and Comment: Mexichem commented that which substitute they wish to use in NHTSA’s joint proposal for model years the ‘‘pending re-examination their product. EPA does not recommend 2017–2025, since EPA’s GHG program proceedings involving sham patents or require the use of a specific continues to provide the level of air refrigerant and does not endorse conditioning credits available to 53 AGC, 2014. ‘‘AGC to Supply Honeywell with products manufactured by specific manufacturers as specified in that HFO–1234yf—New-generation Automobile companies. At least one global motor Notice. Specifically, the Supplemental Refrigerant,’’ January 23, 2014. This document is vehicle manufacturer has announced Notice of Intent states that accessible at: https://www.agc.com/english/news/ plans to have cars with MVAC systems ‘‘(m)anufacturers will be able to earn 2014/0123e.pdf. 54 Arkema, 2013. ‘‘Arkema is announcing the using CO2 on the road in Europe by MY credits for improvements in air construction of production capacities for new 2017; we are not aware of any reason conditioning . . . systems, both for refrigerant fluorinated gas 1234yf,’’ September 4, why such models would not be efficiency improvements . . . and for 2013. This document is accessible at: introduced into the United States by MY leakage or alternative, lower-GWP www.arkema.com/en/media/news/news-details/ Arkema-is-announcing-the-construction-of- 2021. EPA is also aware of a refrigerants used (reduces [HFC] production-capacities-for-new-refrigerant- demonstration project planned by a emissions).’’ 76 FR at 48761. These fluorinated-gas-1234yf/?back=true. major Indian motor vehicle credits remain available under the light-

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duty program at the level specified in action on HFC–134a in the MVAC the risk-based SNAP program to restrict the Supplemental Notice of Intent, and sector, and that no further control, auto exports.’’ using the same demonstration beyond that imposed by the LD GHG Response: This rule does not directly mechanisms set forth in that Notice. Rule, is necessary. regulate production of HFC–134a, Moreover, the supporting assessment for Response: EPA anticipates that if a unlike the rulemaking on the phaseout this rulemaking is consistent with the change of status date earlier than MY of HCFCs that Arkema cited; rather, we assumptions set forth in the 2017–2025 2021 were shown to be feasible and thus are regulating use of HFC–134a as a LD GHG Rule that automakers would were adopted, additional environmental substitute in specific uses. Further, we switch to lower-GWP refrigerants by MY benefits would be gained beyond those disagree with Arkema’s assertion that 2021. Indeed, the standards’ stringency accounted for under EPA’s analysis to U.S. production of HFC–134a would was predicated on 100% substitution support the LD GHG Rule.56 In EPA’s potentially reduce overall beginning in MY 2021.55 analysis of the environmental benefits environmental risks if U.S. production We are not adding a statement to the associated with the proposed and final of HCFCs reduces environmental risks. regulatory text in the final SNAP rule. change of status rule, EPA assumed no EPA’s HCFC allocation rule specifically As noted in the preamble to the environmental benefits from domestic mentioned that HCFC–22 production proposed rule, and reiterated here: ‘‘The transition of MVAC systems in light- (and not production of HCFCs in light duty standards do provide that duty vehicles given that the general) results in byproduct emissions manufacturers can generate credits from environmental benefits resulting from a of HFC–23, a gas with a very high GWP use of alternative refrigerants with lower full transition by MY 2021 were of 14,800. The commenter has not GWPs than that of HFC–134a through accounted for in the LD GHG Rule. The provided any information indicating MY 2025, and the ability to generate and LD GHG Rule anticipated that transition that emissions from production of HFC– use those credits towards compliance for MVAC systems manufactured for use 134a, with a GWP of 1,430, or its with the light duty standards will not in the United States, while continuing byproducts would have a similar high change if this action is finalized as to provide flexibility to manufacturers environmental impact. We disagree with proposed.’’ (79 FR 46142) until MY 2025. This rule, however, the commenter’s assumptions as well as the conclusion that the SNAP program (c) Environmental Impacts ensures a complete transition away from HFC–134a by MY 2021 to a refrigerant should not regulate exports of vehicles. Comment: Several commenters Comment: AAM stated that the that reduces the overall risks to human addressed the climate impacts of the MVAC-related climate benefits of this health and the environment for all proposed HFC–134a unacceptability rulemaking have been incorrectly MVAC systems manufactured in the determination for MVAC. The vast calculated and that ‘‘the environmental majority of commenters on this section United States, including those exported 57 benefits of a MY 2025 change of listing of the rule support a transition to to other countries, and those imported status date are substantially the same as climate-friendly alternatives in MVAC into the United States. The benefits in MY 2021 date.’’ AAM also due to HFC–134a’s high global warming analysis includes these benefits. Also, commented that the cessation of exports potential. Several commenters the analysis was updated to reflect the of vehicles containing HFC–134a to EU supporting transition prior to MY 2021 potential impact of the narrowed use countries should not be included in the related these impacts to the proposed limits in this final rule that allow benefits calculation because the EU timeline for the transition and we continued use of HFC–134a for vehicles already prohibits the use of HFC–134a addressed those comments above (e.g., exported to countries with inadequate and that subtracting exports to EU that if an earlier change of status date infrastructure to support safer countries and to Canada would reduce were adopted, there would be additional alternatives. For additional information the climate benefit due to exports by on environmental benefits analysis environmental benefits). Commenters half to 1 MMTCO2eq. requesting a transition date of MY 2025 conducted for this rule, see the Response: EPA directs commenters to or later commented that the supporting document ‘‘Climate Benefits the benefits analysis associated with the environmental benefits of a delayed of the SNAP Program Status Change final rule and in particular to the change of status date will be Rule’’ (EPA, 2014; EPA, 2015b). anticipated long term change in the substantially the same as a MY 2021 Comment: Arkema commented that trajectory for high-GWP HFCs and transition because the majority of the NPRM deprives U.S. plants of alternatives. The benefits analysis is vehicles will transition by MY 2021 as existing global business in HFC–134a available in the docket and reflects the a result of the LD GHG Rule. These without yielding any environmental final decisions in this action. It has been commenters stated that any benefits of benefit. Arkema also noted that EPA updated since the issuance of the NPRM a MY 2021 or earlier transition may be said, as part of its regulations for to reflect changes between the NPRM averaged out against tailpipe emissions, HCFCs, that production of HCFC–22 for and the final rule. The benefits analysis and could result in automobile export from the U.S. might displace for the final rule does not include manufacturers slowing other fleet GHG production in other countries that do vehicles sold into the EU or Canada, reductions. DuPont commented that it is not control their emissions as given the EU’s existing F-gas regulations unlikely that any additional credits stringently as U.S. chemical producers. and MAC Directive, and for Canada, the achieved under the LD GHG regulations Arkema stated, ‘‘if U.S. production of relationship between their market and from a MY 2019 transition date would HCFCs reduces overall environmental ours. risks, then so does U.S. production of be fully offset and instead there would (d) Cost Impacts of Rule likely be net additional CO2 reductions HFC–134a, and EPA should not be using over those achieved by current Comment: EPA received several regulations. Arkema commented that 56 See Chapter 7 of the Regulatory Impact comments concerning the cost impact of there is no significant climate risk Analysis: Final Rulemaking for 2017–2025 Light- this rulemaking for the MVAC end-use. Duty Vehicle Greenhouse Gas Emission Standards AAM, Global Automakers, and reduction to be had from any SNAP and Corporate Average Fuel Economy Standards, EPA–420–R–12–016, August 2012. Mexichem commented that delaying 55 See id. at 62,779; see also id. at 62778 and 57 Except those vehicles subject to the narrowed transition to MY 2025 or later would 62805. use limit. avoid costs and engineering burdens on

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manufacturers resulting from making Gases: 2010–2030 (EPA, 2013a), and (e) Servicing and Retrofits adjustments to their refrigerant change- converted to 2013 dollars. The Comment: EPA received comments over plans for both vehicles and incremental per-system cost of an related to the continued servicing of manufacturing plants. NRDC and IGSD alternative MVAC system compared to MVAC systems manufactured to use commented that a transition date of MY an HFC–134a system is estimated to be HFC–134a. Two commenters support 2017 would align the U.S. and EU about $62/unit. EPA previously the continued acceptability of HFC– markets and erase these competitive analyzed these costs in documents 134a for servicing, and one commenter disadvantages with minimal impact to supporting the LD GHG Rule and in that requests assurance that continued industry. The Automotive Refrigeration analysis accounted for the cost of 100% servicing will be permitted. ARPI and Products Institute (ARPI) and Auto Care of domestic vehicles to transition to use the Auto Care Association, representing Association commented that a change of HFO–1234yf by MY 2021. These the automotive aftermarket industry, from HFC–134a to lower-GWP incremental costs are less than 1% jointly commented that they support the refrigerants should not cause any relative to the total direct manufacturing change of status of HFC–134a in MVAC substantial economic hardship to car cost for a light-duty vehicle.58 EPA does provided that systems using owners. Additional comments relating not believe an incremental cost of less replacement refrigerants are available at to EPA’s economic analysis are included than 1% of the total direct the time at a reasonable price and that in section VII.B of the preamble, ‘‘Cost manufacturing cost will slow the the ‘‘phase out’’ does not adversely and economic impacts of proposed transition away from HFC–134a. EPA status changes.’’ understands that often new alternatives affect the use of HFC–134a in the Response: EPA understands that there have higher initial costs, but this is not millions of vehicles which will then are challenges associated with always true. In addition, over time the still have MVAC systems designed for transitioning refrigerants, including cost of the alternative often drops as that refrigerant. Response: EPA did not propose and is costs to manufacturers in redesigning demand and supply increase. equipment and making changes to Comment: Global Automakers and not finalizing a change of status for manufacturing facilities. However, as AAM commented that if EPA includes HFC–134a used for servicing MVAC explained in more detail in the response exports in this regulation, EPA would be systems designed to use HFC–134a. to comments later in this preamble, placing U.S.-based manufacturers of Thus, vehicles manufactured to use under the SNAP criteria for review in 40 export vehicles at a competitive HFC–134a may, consistent with this CFR 82.180(a)(7), consideration of cost disadvantage compared to automakers rule, continue to be serviced with HFC– is limited to cost of the substitute under producing vehicles outside of the 134a. review, and that consideration does not United States. Global Automakers stated Comment: EPA received a comment include the cost of transition when a in their comment that ‘‘this rulemaking requesting clarification on the ability to substitute is found unacceptable. will unnecessarily cause substantial retrofit or service an HFO–1234yf Moreover, we note that during model economic harm to the U.S. economy, system with HFC–134a. redesigns, many other engineering U.S. jobs, and balance of payments if Response: As discussed elsewhere in changes are being made and that exports are included in the regulatory the preamble, the SNAP regulations changing the MVAC system during a provisions.’’ Arkema, Mexichem, and include use conditions and other planned redesign cycle could reduce BMW also commented on the potential requirements that limit the ability to costs when compared to MVAC system economic impacts of regulating exports. service an MVAC system designed to changes mid-redesign cycle. We Response: An inability to export use an alternative with a refrigerant anticipate that a change of status in MY vehicles manufactured with HFC–134a other than the one the system was 2021 will allow manufacturers to make could be a competitive disadvantage in designed to use. See section V.B.3 for a changes to the MVAC systems for most any countries where vehicles detailed description. vehicle models as part of the model manufactured with other alternatives Also, as discussed in more detail in redesign process. cannot be supported. However, as section V.B.3, for vehicles for which the Comment: A few commenters noted discussed above, the additional cost of manufacturer counts air conditioning the high price of HFO–1234yf relative to a vehicle manufactured using an credits toward its LD GHG compliance, HFC–134a. One commenter, referring to alternative (e.g., HFO–1234yf) is the MVAC systems (or elements of those the NPRM, stated that EPA continues to anticipated to be approximately $62 systems) are considered emission- believe that HFO–1234yf is unlikely to more per vehicle; this is not sufficient related components as defined in 40 ever be as inexpensive as HFC–134a is to create a competitive disadvantage in CFR 86.1803. This designation includes currently. Commenters stated that the countries where both HFC–134a and provisions for emission-related high price of HFO–1234yf is likely to other alternatives are supported. warranty, requirements that they slow the transition away from HFC– Further, EPA is providing a narrowed operate properly for the specified useful 134a in the United States. use limit in this final action that would life, and tampering restrictions. Response: As explained in more detail allow vehicles destined for export to a in the response to comments later in (f) Refrigerant Blends for Retrofits of country with insufficient infrastructure MVAC Systems this preamble, under the SNAP criteria to be manufactured with HFC–134a Comment: Two commenters requested for review in 40 CFR 82.180(a)(7), the through MY 2025. Thus, U.S. that EPA also list the refrigerant blends only cost information that EPA manufacturers should not experience a as unacceptable for use in retrofits in considers as part of its SNAP review is competitive disadvantage. the cost of the substitute under review. the final rule as well as in new equipment. SAE Interior Climate As part of EPA’s cost analysis 58 Environmental Protection Agency (EPA) and conducted in support of this National Highway Traffic Safety Administration Control Committee (SAE ICCC), the rulemaking, the potential costs to (NHTSA). 2012. Joint Technical Support Document: leading standards writing body in the manufacturers were estimated based on Final Rulemaking for 2017–2025 Light-Duty Vehicle United States for MVAC, commented Greenhouse Gas Emission Standards and Corporate that they support the extension of the per-system costs of alternative systems, Average Fuel Economy Standards. August 2012. as identified in EPA’s report on Global Available online at: http://www.epa.gov/otaq/ unacceptability finding to retrofits Mitigation of Non-CO2 Greenhouse climate/documents/420r12901.pdf. because they have never written any

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standards for these refrigerants. The In past cases where the SNAP or MY 2019, respectively, EPA could other commenter, DuPont, program has regulated other substitutes consider narrowed use limits to address recommended that because the that posed high environmental risk due any sub-sectors that have problems refrigerants are not currently in use and to collective global emissions, we have meeting a transition date earlier than it would be undesirable to have them taken three different approaches. One MY 2021, if, for example, the Agency used, EPA should also change the SNAP approach has been to restrict the believed there was a basis to claims of status for the blend refrigerants to substitute to a niche use through a country-specific performance barriers unacceptable for retrofit (in addition to narrowed use limit, where it was (e.g., due to high ambient temperatures) new) MVAC uses. particularly difficult to find any feasible or lack of infrastructure for safer Response: EPA has not undertaken substitute and the niche use was alternatives. the full analysis necessary to determine unlikely to result in significant total Response: As discussed further in this whether to list these refrigerant blends emissions (e.g., narrowed use limit on section, EPA has finalized a narrowed as unacceptable for retrofits. high-GWP fire suppressant SF6 for use use limit for certain vehicles to be Accordingly, EPA did not propose to only as a discharge agent in military exported to countries that have not yet find the refrigerant blends unacceptable applications and in civilian aircraft at developed sufficient infrastructure for for retrofits. Additional information, as appendix B to 40 CFR part 82, subpart using safer alternatives. EPA has well as an opportunity for public G). A similar approach has been to received no documentation supporting a comment, would be necessary before we restrict the substitute through a narrowed use limit related to ambient would be able to potentially find the narrowed use limit to use only ‘‘where temperature conditions, and therefore, refrigerant blends unacceptable for use other alternatives are not technically has not included such a narrowed use in retrofits (e.g., information on the feasible due to performance or safety limit in this final action. extent of use of the refrigerant blends). requirements’’ (e.g., narrowed use limits Comment: EPA received comments EPA appreciates the comments on perfluorocarbon solvents for from several commenters related to the submitted on this topic and will take precision cleaning and C6F14 as a total servicing infrastructure for lower-GWP them into consideration when preparing flooding agent for fire suppression at alternatives outside the United States. additional status change rules. appendix A to 40 CFR part 82, subpart Some details are provided below and the remaining details can be found in (g) Use Conditions for HFC–134a G). The third approach EPA has used to address environmental risks from global the Response to Comments document. Comment: Arkema commented that it emissions of a substitute, and the only Arkema, Mexichem, BMW, AAM, and is ‘‘arbitrary and capricious’’ for EPA to approach we have taken to date for such Global Automakers raised concerns find acceptable substances that could a substitute that is already widespread including whether destinations for compete with HFC–134a in MVAC only in industry, is to find the substitute exported vehicles will have sufficient because those other substances are unacceptable (e.g., HCFC–141b in service sector support and refrigerant subject to use conditions, and then to solvent cleaning at appendix A to 40 distribution networks for HFO–1234yf; find HFC–134a unacceptable based on CFR part 82, subpart G and HCFC–141b and the ability to conform to SNAP use comparisons to those other substances in foam blowing at appendix M to 40 conditions, given the large proportion of without considering any comparable use CFR part 82, subpart G). MVAC is not automobiles manufactured in the U.S. restriction on HFC–134a. The a niche use, and there are clearly other for export (up to one-fourth). commenter referred to a discussion in technically feasible substitutes that will Commenters question whether the the proposed rule concerning be available by the status change date alternatives are truly ‘‘available’’ for use establishing charge limits through use specified in this final rule for use in in export markets if there is a lack of conditions for a number of high GWP vehicles that will be sold domestically, service sector support and comment that refrigerant blends for use in so it is not reasonable to provide a this regulation could lead to supermarket systems and condensing narrowed use limit for HFC–134a manufacturers having to limit export units as an example. beyond that established in this final rule production at U.S. assembly plants. Response: EPA has not proposed for export to nations with insufficient Commenters are also concerned about additional use conditions for HFC–134a infrastructure for other alternatives. the time needed to overcome regulatory comparable to those for HFO–1234yf, Concerning Arkema’s reference to a and legislative barriers. AAM suggested HFC–152a, and CO2 because the ways of discussion on use conditions for charge that EPA designate certain export addressing risks for these substitutes are size limits, we note that in the proposed markets that can still receive U.S. not comparable. The use conditions rule we also stated, ‘‘However, given the exports of HFC–134a vehicles, which unique to HFO–1234yf and HFC–152a high GWP of these refrigerants they believe currently should be all address flammability risks through compared to other refrigerants that are export markets except Canada and engineering strategies that will keep available in these end-uses, we do not Europe. refrigerant concentrations below the believe that use with a small charge size In contrast, DuPont and Honeywell, lower flammability limit in each vehicle adequately addresses the greater risk manufacturers of HFO–1234yf, asserted and by requiring labels providing they pose.’’ This is even more so in that service supply follows demand and information on the flammability risk. MVAC than in commercial refrigeration the equipment for low GWP refrigerant The use conditions unique to CO2 products, due to the more widespread service is readily available. These address toxicity and consumer exposure use of MVAC in hundreds of millions of commenters stated that dealers and risks through requiring engineering vehicles and the greater difference in service shops can be expected to acquire strategies that will keep refrigerant GWP between the unacceptable the necessary equipment and materials concentrations at safe levels in the substitute and other, lower-GWP to serve the market demand and that it passenger compartment of the vehicle. alternative, compared to supermarket is the responsibility of the vehicle In contrast, the environmental risks systems and remote condensing units. manufacturer to ensure that their from HFC–134a are due to the collective authorized dealers in those countries are global impact of refrigerant emissions (h) Flexibility for Exports able to provide all the necessary service released over time from the entire Comment: NRDC, IGSD, and DuPont to these exported cars under warranty. automotive industry. suggested that if EPA finalizes MY 2017 Honeywell and DuPont both stated that

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they have already developed an true since 2007 when the Parties to the to ensure such training is in place in all extensive network of distributors that Montreal Protocol adopted a more markets worldwide in order to fully are capable of supplying HFO–1234yf aggressive phaseout schedule for accommodate U.S. exports with the new globally. DuPont stated that based on HCFCs, for end-uses using HCFCs such refrigerants. EPA has already developed demand from the motor vehicle as stand-alone commercial refrigeration information on the newer alternative aftermarket, they have distribution appliances. Thus there are systems in refrigerants acceptable in the United covering more than 40 countries, 11 place for communicating information on States that is available on our Web site more than the combined EU member new refrigerants and for sharing and could be a resource for others. In states and the United States, and experience. Further, the experiences of addition, the use conditions requiring including Saudi Arabia, Turkey, Israel the United States and Europe are being labeling and unique fittings for and the United Arab Emirates. shared widely. We have provided refrigerants for MVAC for service Response: EPA is aware that many information to the Montreal Protocol’s equipment and vehicle service ports countries, in addition to Canada and Secretariat and to UNEP. We already are serves as a means for informing those in the EU, already have servicing also seeing information shared through technicians as to what refrigerant is infrastructure in place, and anticipates a range of mechanisms by the being used. that the number will grow by MY 2021. Secretariat and UNEP as well as EPA understands that the commenters However, EPA also recognizes that there included in reports of the Montreal are suggesting that there still may be may be some markets where additional Protocol’s Technical and Economic markets that do not have infrastructure time may be needed to ensure servicing Assessment Panel (TEAP), SAE, and in place by MY 2025. Based on the infrastructure is available. EPA is other bodies. speed of transition that we are seeing, providing a narrowed use limit for In addition, EPA notes that the G–7 EPA does not agree. However, the HFC–134a in new MVAC systems leaders committed in June 2014 to Agency could consider proposing a destined for use in countries that do not promote the rapid deployment of change in the future if needed. have infrastructure in place for servicing climate-friendly and safe alternatives to C. Retail Food Refrigeration and with other acceptable refrigerants. This HFCs in motor vehicle air-conditioning Vending Machines narrowed use limit will remain in place and to promote public procurement of through MY 2025. The remaining climate-friendly HFC alternatives. EPA 1. Background information in this response explains notes that many countries already are (a) Overview of SNAP End-Uses, End- why EPA believes it is not necessary to committed to take action to promote Use Categories and Commonly-Used have a narrowed use limit in place public procurement of climate-friendly Refrigerants indefinitely. EPA is particularly lower-GWP alternatives whenever encouraged to learn that there is feasible and would likely consider EPA refers readers to section V.C.1 of currently distribution for HFO–1234yf MVAC as a potentially feasible end-use. the preamble to the proposed rule for a in 40 countries, 11 more than the For the reasons above, we believe that detailed discussion of the end-uses combined EU member states and the sufficient progress is being made and within the refrigeration sector covered United States and, that these countries will continue to be made such that the by this rule as well as information on include Saudi Arabia, Turkey, Israel and narrowed use limit need not apply some of the refrigerants used within the United Arab Emirates, which beyond MY 2025. those end-uses. indicates that infrastructure is already Comment: Global Automakers In the proposed rule, EPA proposed to being put in place in a significant commented that it is imperative to have change the listing for certain refrigerants number of countries. trained technicians and shops equipped for two end-uses within the EPA does not agree that every country with the necessary equipment to service ‘‘commercial refrigeration’’ sector— in the world would need as much time and repair MVAC systems using retail food refrigeration and vending as was needed in North America and flammable refrigerants, and special machines. Retail food refrigeration, as Europe to resolve barriers to transition. equipment is needed to recover, recycle, affected by today’s rule, is composed of Many countries look to the SNAP and re-charge flammable refrigerants three main categories of equipment: program and the EU’s REACH program before vehicles using such refrigerants Stand-alone equipment; remote as a source of information to inform can be marketed in a specific country. condensing units; and supermarket their domestic programs and, thus AAM commented that on average, every systems. Stand-alone equipment transition for those countries should vehicle gets completely recharged with consists of refrigerators, freezers, and proceed more quickly. EPA notes the new refrigerant at least once during its reach-in coolers (either open or with widespread use of flammable lifetime, and therefore, the unique need doors) where all refrigeration refrigerants for various end-uses in other for such widespread service support for components are integrated and, for the countries (more so than in the United MVAC differentiates this situation from smallest types, the refrigeration circuit States) as well as the inclusion of such past SNAP considerations of export is entirely brazed or welded. These refrigerants for projects considered by markets for other appliances. systems are termed ‘‘stand-alone’’ the Executive Committee of the Response: EPA agrees with the value within the SNAP program because they Montreal Protocol’s Multilateral Fund. of providing information and training to are fully charged with refrigerant at the We anticipate that many countries that technicians. In the United States, we are factory and typically require only an do not have adequate infrastructure in currently working with technician electricity supply to begin operation. place in 2015 will have it in place in certification programs to include Condensing units, called remote time to service MY 2021 vehicles. information on HFC–152a, R–744, and condensing units in this final action as In many cases international agencies, HFO–1234yf. EPA agrees with discussed below, exhibit refrigerating such as the United Nations Environment commenters that there is value in capacities that typically range from 1 Programme (UNEP), have been working technician training and education on a kW to 20 kW (0.3 to 5.7 refrigeration with developing countries to facilitate global basis. International agencies such tons) and are composed of one (and changes in domestic regulations to as UNEP could potentially be a source sometimes two) compressor(s), one allow for the use of lower-GWP of such training in developing countries. condenser, and one receiver assembled solutions. This has been particularly EPA does not agree that it is necessary into a single unit, which is normally

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located external to the sales area. The operating system design. While a are keeping these two categories modifier ‘‘remote’’ indicates that the number of approaches exist, there is no separate. condenser (and often other parts of the uniformly accepted holistic analysis of The AHRI document (Docket ID# system) are not located in the space or the multiple factors listed above. EPA EPA–HQ–OAR–2014–0198–0005) also area cooled by the evaporator but are recognizes that there must be a range of attempts to draw an additional instead located outside the room, options, and that the decision as to distinction regarding commercial walk- typically ejecting heat to the outdoor which option to select must remain with in coolers and freezers. We note that we ambient environment. Remote the owner and operator of the system. do not treat such units separate from the condensing units are commonly categories described above. Rather such installed in convenience stores and (b) Terms and Coverage units would fall within the end-use specialty shops such as bakeries and During a meeting with EPA just prior category ‘‘supermarket system’’ if the butcher shops, as well as in to publication of the proposed rule, an refrigerant is supplied on the same supermarkets, restaurants and other industry trade organization representing multi-compressor circuit used to cool locations where food is stored, served or manufacturers of refrigeration food elsewhere in the store or within the sold. equipment, Air-Conditioning, Heating, end-use category ‘‘remote condensing Typical supermarket systems are and Refrigeration Institute (AHRI), unit’’ if only a one- or two-compressor known as multiplex or centralized raised concerns that in some situations system is used (generally dedicated to systems. They operate with racks of the definitions and categories used in just the individual walk-in cooler or compressors installed in a machinery the SNAP program differ from those freezer). room. Two main design classifications used by the U.S. Department of Energy AHRI further notes that both are used: Direct and indirect systems. At (DOE) and/or the industry and they supermarket systems and remote least 70% of supermarkets in the United submitted a document identifying those condensing units can be connected to States use centralized direct expansion definitions and categories (see EPA various types of display cases designed (DX) systems to cool their display Meeting on Commercial Refrigeration to maintain products at various 59 cases. In these systems, the refrigerant Equipment—June 10, 2014 under temperatures, often subdivided as circulates from the machinery room to Docket ID# EPA–HQ–OAR–2014–0198– ‘‘medium-temperature’’—roughly between 32 °F (0 °C) and 41 °F (5 °C)— the sales area, where it evaporates in 0005). They indicated that the term and ‘‘low-temperature’’—roughly display-case heat exchangers, and then ‘‘commercial refrigeration’’ is often first between ¥40 °F (¥40 °C) and 32 °F returns in vapor phase to the suction divided by the type and location of the (0 °C). EPA notes that within the SNAP headers of the compressor racks. condensing unit, using two broad terms. end-uses and categories described Another direct supermarket design, ‘‘Remote condensing’’ is used to above, no distinction is currently made often referred to as a distributed indicate systems where the condensing based on application temperature refrigeration system, uses an array of unit and compressors are located (medium or low) and so the decisions separate compressor racks located near remotely from where food is stored or the display cases rather than having a finalized in today’s rule apply to all displayed and instead the refrigerant or central compressor rack system. Indirect equipment fitting within the secondary-fluid is piped to the cases or supermarket designs include secondary supermarket and remote condensing rooms where the food is located. ‘‘Self- loop systems and cascade refrigeration. units end-use categories as described; contained’’ is used to indicate that the Indirect systems use a chiller or other however, based on comments received, condensing unit (along with the refrigeration system to cool a secondary within the stand-alone equipment end- compressor and evaporator) is fluid that is then circulated throughout use category a distinction is made integrated into the case in which the the store to the cases. between equipment designed for ‘‘low’’ Refrigerant choices depend on the food is stored and displayed. These temperatures and other equipment. refrigerant charge (i.e., the amount of units are generally initially charged by During the comment period on the refrigerant a system is designed to the case manufacturer at the proposed rule, we received additional contain under normal operating manufacturing plant. questions and comments about whether conditions), the product temperature EPA notes that the term ‘‘self- certain types of equipment were required, energy efficiency, system contained’’ is synonymous with the included in the end-uses addressed in performance, ambient temperatures, SNAP end-use category ‘‘stand-alone’’ this action. We are clarifying here that operating conditions, potential impact and we are retaining use of the term specific types of equipment used in the on community safety, potential risk to stand-alone for this rulemaking action. food industry do not fall within the end- personal safety, cost, and minimization The term ‘‘remote condensing’’ applies uses and end-use categories affected by of direct and indirect environmental to the SNAP end-use categories of this rule: Blast chillers, ice making impacts, among other things. In ‘‘supermarket systems’’ and machines not connected to a addition, federal or local regulations ‘‘condensing units.’’ For the latter end- supermarket system, very low may also affect refrigerant choice. For use category, in this final rule we are temperature refrigeration, and certain instance, regulations from the OSHA revising the term ‘‘condensing units’’ to food and beverage dispensing systems. may restrict or place requirements on be ‘‘remote condensing units.’’ EPA A ‘‘blast chiller’’ or ‘‘blast freezer’’ is the use of some refrigerants, such as draws a distinction between a type of equipment in which cold air ammonia (R–717). Building codes from ‘‘supermarket systems’’ and ‘‘remote is supplied and circulated rapidly to a local and State agencies may also condensing units’’ based on the number food product, generally to quickly cool incorporate limits on the amount of of compressors in the remote or freeze a product before damage or particular refrigerants used. There are condensing system. Supermarket spoilage can occur. Such units are and will continue to be a number of systems generally have more than two typically used in industrial settings factors that retailers must consider compressors arranged in a ‘‘rack’’ (e.g., at a factory or on a large fish- when selecting the refrigerant and whereas remote condensing units catching vessel) and fall under the typically have only one or two SNAP end-use ‘‘Industrial Process 59 www2.epa.gov/greenchill/advanced- compressors linked to a single Refrigeration’’ and hence are not subject refrigeration. condenser. For purposes of this rule, we to this rule.

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‘‘Ice makers’’ are machines designed retail food refrigeration includes ‘‘cold condensing units, and stand-alone for the sole purpose of producing ice, in storage cases designed to chill food for equipment end-use categories. various sizes and shapes, and with commercial sale,’’ these units generally Specifically, equipment classes different retrieval mechanisms (e.g., do more than just store food or designated in the DOE Standard as dispensers or self-retrieval from bins). beverages. For instance, United XXXX.RC.T, where XXXX is the Under SNAP, ‘‘commercial ice Technologies states such equipment equipment class, RC specifies a remote machines’’ are identified as a separate ‘‘transform[s] a liquid product into a condensing operating mode code, and T end-use not part of the retail food frozen beverage or confection with the indicates a rating temperature (e.g., M refrigeration end-use (e.g., not a ‘‘stand- incorporation of air to provide and L for medium and low temperature, alone’’ unit). See e.g., 59 FR 13070 uniformity and specific customer respectively), may fall under either the (March 18, 1994) where EPA clearly requirements. These products are supermarket system or remote designated ‘‘commercial ice machines’’ transformed and manufactured within condensing unit end-use category, as a separate end-use than ‘‘retail food the equipment, held in a frozen state depending on how that equipment is refrigeration.’’ Thus, both self-contained and ultimately dispensed into a serving applied. In addition, equipment classes ice makers, as well as ice-making units vessel that is provided to an end designated as XXXX.SC.T, where SC solely connected via piping to a customer.’’ Hence, these types of specifies a self-contained operating dedicated remote condenser, do not fall products are in a category separate from mode code, may fall under the stand- under the retail food refrigeration end- the three ‘‘retail food refrigeration’’ end- alone equipment end-use category. use and hence are not subject to this use categories addressed in today’s rule. EPA’s review indicates that rule. In contrast, ice-making units that We also received several comments equipment designated in the Walk-In are connected to a supermarket system and questions regarding energy Cooler and Freezers Standards may fall are subject to this rule. For instance, if conservation standards established by under the supermarket systems, remote a supermarket rack system supplies DOE and how the equipment subject to condensing units, and stand-alone refrigerant to a unit to make ice, such as this rule is also subject to the DOE equipment end-use categories. for use in meat and seafood storage, standards. While EPA is not making any Specifically, equipment within the class display and sales, and that refrigerant decisions on the applicability of the descriptor Multiplex Condensing (either and compressor rack are part of a larger DOE standards to specific equipment, Medium or Low Temperature) may fall circuit that also provides cooling for we see that at least three such standards under the supermarket systems end-use other products in the store, the entire and perhaps more apply to types of category, i.e., if such a walk-in cooler or system would be classified as a equipment that are also subject to this freezer utilizes refrigerant from a larger, ‘‘supermarket system’’ and hence would rule. These three standards are titled multi-compressor (rack) system. In be subject to today’s rule. EPA would Energy Conservation Standards for addition, equipment within the class like to clarify that since remote Commercial Refrigeration Equipment descriptor Dedicated System, Outdoor condensing ice makers designed solely (79 FR 17725; March 28, 2014), Energy System (regardless of temperature and to be connected to a supermarket remote Conservation Standards for Walk-In capacity) may fall under the remote rack are not sold or manufactured with Coolers and Freezers (79 FR 32049; June condensing units end-use category, i.e., a condensing unit, they do not meet the 3, 2014) and Energy Conservation if connected to a remote condensing definition of automatic commercial ice Standards for Refrigerated Bottled or unit and not integrated into a larger, maker used by DOE in the automatic Canned Beverage Vending Machines (74 multi-compressor (rack) system. commercial ice maker energy FR 44914; August 31, 2009). These are Furthermore, equipment falling in the conservation standards. referred to in this rule using shortened class descriptor Dedicated System, Several commenters, including Master names or a generic name such as ‘‘DOE Indoor System (regardless of Bilt Products and Thermo Fisher, Standards.’’ temperature and capacity) may fall in identified products they manufacture to The Commercial Refrigeration the stand-alone equipment end-use reach temperatures of ¥50°F (¥46°C) or Equipment Standards have an effective category, i.e., if the equipment is even lower. These products fit under the date of May 27, 2014 and a compliance manufactured and fully charged with end-use ‘‘very low temperature date of March 27, 2017. The Walk-In refrigerant at the factory. refrigeration’’ and hence are not covered Coolers and Freezers Standards have an EPA’s review indicates that by this rule. EPA also notes that it effective date of August 4, 2014 and a equipment covered by the Beverage recently found R–170 (ethane) as compliance date of June 5, 2017. The Vending Machine Standards (including acceptable, subject to use conditions, in Beverage Vending Machines Standards Class A, Class B and Combination the very low temperature refrigeration have effective dates of October 30, 2009 vending machines) falls under the end-use. (April 10, 2015; 80 FR 19453) and August 31, 2011 and a compliance vending machines end-use. Other commenters, such as Emerson, date of August 31, 2012. DOE posted a In all cases, the DOE Standards apply HC Duke/Electro-Freeze, and United notice of a public meeting and to new equipment, not retrofitted Technologies, mentioned equipment availability of the Framework document equipment. Also, any foam used in such designed to make or process cold food for an expected proposed rule to amend systems or components that are also and beverages that are dispensed via a the standards for refrigerated bottled or covered (e.g. various panels and doors nozzle, including soft-serve ice cream canned beverage vending machines (78 within the Walk-In Coolers and Freezers machines, ‘‘slushy’’ iced beverage FR 33262; June 4, 2013). Material in the Standard), may fall under the rigid PU dispensers, and soft-drink dispensers. docket for that action indicate DOE’s commercial refrigeration and sandwich Such equipment can be self-contained plans for a final rule with a compliance panel end-use and be affected by the or can be connected via piping to a date three years later (see EERE–2013– changes of status discussed in section dedicated condensing unit located BT–STD–0022). V.D below. elsewhere. EPA does not consider this EPA’s review indicates that equipment to fall under either the equipment designated in the (c) The Terms ‘‘New’’ and ‘‘Retrofit’’ ‘‘stand-alone’’ or ‘‘remote condensing Commercial Refrigeration Equipment and How They Apply to Servicing unit’’ categories of retail food Standards may fall under the Several commenters, including the refrigeration. While our definition of supermarket systems, remote Food Marketing Institute (FMI),

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Supermarket Company ABC, and describe their retrofit products as ‘‘drop- maintained for the useful life of that Hussmann sought clarification of the ins’’ but EPA does not use that term equipment using the original refrigerant, terms ‘‘new’’ and ‘‘retrofit’’ and how interchangeably with retrofit (see 79 FR whereas new systems (including new these terms might affect store remodels 64270). We recognize that some changes supermarket systems) manufactured and the use of cases or other equipment typically would be required for after the change of status date will not that in the future are added to or equipment to use a refrigerant other be allowed to use refrigerants for which replaced for existing cases or than the one for which it was designed. the status has changed to unacceptable. equipment. In many cases, lubricants need to be Consistent with the definition in For the refrigeration and air- changed (for instance, changing from a subparts A and I of part 82, quoted conditioning sector, the SNAP program mineral oil to a polyolester lubricant above, EPA will consider a system to be has, since the inception of the program, when retrofitting from a CFC to an new for purposes of these SNAP made a distinction between new HFC). Due to different performance determinations as of the date upon equipment and retrofitted equipment. In characteristics, other changes may need which the refrigerant circuit is some cases, a particular refrigerant is to occur when retrofitting, such as complete, the system can function, the acceptable or acceptable subject to use adjustments to or replacement of system holds a full refrigerant charge, conditions only in new equipment, not thermostatic expansion valves (TXVs) and the system is ready for use for its in retrofits. In other cases, a particular and filter-driers. In addition, gaskets intended purposes. As explained in the refrigerant is only acceptable in retrofits, and other materials may need to be fact sheet referenced above, a not new equipment. In the NPRM, EPA replaced due to different compatibility supermarket may undergo an expansion evaluated whether to change the status properties of the different refrigerants. and continue to use the existing of refrigerant substitutes for retrofits Such changes could occur as part of refrigerant ‘‘if there is sufficient cooling separate from its evaluation of whether maintenance as well as during a retrofit. capacity within the system to support to change the status of refrigerant In addition to drawing a distinction the expansion’’ as EPA would consider substitutes for new equipment in each between new and retrofit for the SNAP that in such a situation ‘‘the store is not of the four end-uses and categories— program, EPA also included a changing the intended purpose of the supermarket systems, remote distinction between new and existing system.’’ As pointed out by FMI, the condensing units, stand-alone equipment in its regulations replacement of existing display cases equipment, and vending machines— implementing the HCFC phaseout and with ones that operate at a higher addressed. Since the inception of the use restrictions in section 605 of the evaporator temperature, but still provide SNAP program, EPA has made separate CAA. As of January 1, 2010, use of the same purpose of maintaining determinations for refrigerants used in HFC–22 and HFC–142b was largely products at required temperatures, is ‘‘new’’ equipment and as a ‘‘retrofit’’ to restricted to use as a refrigerant in one way in which a system may be existing equipment. We are likewise equipment manufactured before that remodeled without changing the today making separate decisions for new date (40 CFR 82.15(g)(2); 74 FR 66412). intended purpose of the system. On the and retrofit equipment within the retail Similarly, as of January 1, 2015, use of other hand, if a supermarket remodel or food refrigeration and vending machines other HCFCs not previously controlled expansion changes the intended end-uses. was largely restricted to use as a purpose of the original equipment, for EPA uses the term ‘‘retrofit’’ to refrigerant in equipment manufactured instance by adding additional cases, indicate the use of a refrigerant in an before January 1, 2020 (40 CFR compressors, and refrigerant that were appliance (such as a supermarket 82.15(g)(4); 74 FR 66412). In that not supported by the original system) that was designed for and context, EPA defined ‘‘manufactured,’’ compressor system, EPA would originally operated using a different for an appliance, as ‘‘the date upon consider the expanded system a ‘‘new’’ refrigerant 60 and does not use the term which the appliance’s refrigerant circuit system. In that situation, a supermarket to apply to upgrades to existing is complete, the appliance can function, would not be allowed to use a equipment where the refrigerant is not the appliance holds a full refrigerant refrigerant that was listed as changed. For instance, we drew this charge, and the appliance is ready for unacceptable as of the date that new distinction when we found R–290 use for its intended purposes’’ (40 CFR system was expanded or remodeled, acceptable for use in retail food 82.3, 82.302). We provided further even if the system had been using that refrigerators and freezers (stand-alone explanations and example scenarios of refrigerant before the expansion or units) subject to use conditions (76 FR how the HCFC phaseout and use remodel. 78832; December 20, 2011) stating restrictions apply to supermarkets in the 2. What is EPA finalizing for retail food ‘‘none of these substitutes may be used fact sheet Supermarket Industry Q & A refrigeration (supermarket systems)? as a conversion or ‘retrofit’ refrigerant on R–22 Use (www.epa.gov/ozone/title6/ for existing equipment designed for phaseout/Supermarket_Q&A_for_R- The change of status determinations other refrigerants’’ (40 CFR part 82, 22.html). for retail food refrigeration (supermarket subpart G, appendix R). Some Under today’s rule, existing systems systems) are summarized in the alternative refrigerant providers may continue to be serviced and following table:

TABLE 4—CHANGE OF STATUS DECISIONS FOR RETAIL FOOD REFRIGERATION (SUPERMARKETS SYSTEMS)

End-use Substitutes Decision

Retail food refrigeration (supermarket systems) HFC–227ea, R–404A, R–407B, R–421B, R–422A, Unacceptable as of January 1, 2017. (new). R–422C, R–422D, R–428A, R–434A, R–507A.

60 A chemical or mixture that is not the same as that used before the retrofit, typically denoted by different ‘‘R’’ numbers under ASHRAE Standard 34.

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TABLE 4—CHANGE OF STATUS DECISIONS FOR RETAIL FOOD REFRIGERATION (SUPERMARKETS SYSTEMS)—Continued

End-use Substitutes Decision

Retail food refrigeration (supermarket systems) R–404A, R–407B, R–421B, R–422A, R–422C, R– Unacceptable as of July 20, 2016. (retrofit). 422D, R–428A, R–434A, R–507A.

(a) New Supermarket Systems supermarket in Spain.62 The producer of R–717, the other available of R–450A, Honeywell, indicated in refrigerants, as well as those that we are For new supermarket systems, EPA their comments that supply of this finding unacceptable, are not had proposed to change the status, as of acceptable alternative was ‘‘soon to flammable. R–717 is classified as B2L January 1, 2016, for nine HFC blends become available.’’ They indicated that (higher toxicity, lower flammability, low and HFC–227ea to unacceptable: The they have invested in their U.S. facility flame speed) under the American HFC blends are R–404A, R–407B, R– ‘‘to ensure high-volume manufacturing 421B, R–422A, R–422C, R–422D, R– Society of Heating, Refrigerating and capability for HFO–1234ze(E),’’ one 428A, R–434A, and R–507A. In today’s Air-Conditioning Engineers (ASHRAE) component of R–450A. The other final rule, we are changing the status of Standard 34–2013. However, since it is component, HFC–34a, is widely these ten refrigerants to unacceptable in acceptable only for use as the primary available from multiple producers and new supermarkets as of January 1, 2017 refrigerant (i.e., the one housed in the refrigerant suppliers. Honeywell noted (i.e., one year later than proposed), machine room and limited-access that ‘‘commercial quantities of HFO– based on information the Agency condensers) in secondary loops systems, 1234yf and HFO–1234ze [are] available received concerning timelines for potential exposure is limited to today.’’ Likewise, DuPont indicated an planning new stores; this information technicians and operators who are increasing supply of HFO–1234yf, a implied that contractual arrangements expected to have had training on its safe component in a number of acceptable for specific equipment purchases could use. Because of this limited access, the refrigerants for new supermarket have already been in place at the time fact that R–717 has been used systems, specifically R–448A, R–449A the proposal was issued but that new successfully as a refrigerant for over 100 and R–513A, amongst other applications systems will not be completed by years, and because building codes and discussed below. OSHA regulations often apply January 1, 2016. A January 1, 2017, In the preamble to the NPRM, 79 FR status change date will address this specifically to the use of R–717, EPA at 46144, EPA provided information on previously determined that in this end- concern. We note that systems not ready the risk to human health and the for use by January 1, 2017 would not be use the risk posed with regard to environment presented by the toxicity and flammability is not able to use a substitute listed as alternatives that are being found unacceptable as of that date. significantly greater than for other unacceptable as compared with other available refrigerants or for the (1) What other alternatives does EPA available alternatives. In addition, EPA refrigerants we are listing as find pose lower overall risk to human listed as acceptable R–450A on October unacceptable. Some of the refrigerant health and the environment? 21, 2014 (79 FR 62863) and included blends listed as acceptable, as well as information on its risk to human health some of the substitutes that we are A number of other refrigerants are and the environment. Concurrently with listed as acceptable for new supermarket finding unacceptable include small this rule, EPA is also listing R–448A, R– amounts (up to 3.4% by mass) of VOC systems: FOR12A, FOR12B, HFC–134a, 449A and R–513A as acceptable in this IKON A, IKON B, KDD6, R–125/290/ such as R–600 (butane) and R–600a end-use category and is including (isobutane). These amounts are small, 134a/600a (55.0/1.0/42.5/1.5), R–407A, information on their risk to human R–407C, R–407F, R–410A, R–410B, R– and EPA’s analysis of hydrocarbon health and the environment. A technical refrigerants show that even when used 417A, R–421A, R–422B, R–424A, R– support document that provides the 426A, R–437A, R–438A, R–448A, R– neat (i.e., as the sole refrigerant, not as additional Federal Register citations a component within a blend) they are 449A, R–450A, R–513A, R–744, RS–24 concerning data on the SNAP criteria (2002 formulation), RS–44 (2003 not expected to contribute significantly (e.g., ODP, GWP, VOC, toxicity, to ground level ozone formation (ICF, formulation), SP34E, THR–02, and flammability) for these alternatives may THR–03.61 In addition, R–717 is listed 2014e). In the original actions listing be found in the docket for this these refrigerants as acceptable or as acceptable in new supermarkets rulemaking (EPA, 2015d). In summary, when used as the primary refrigerant in acceptable subject to use conditions, the other available substitutes all have EPA concluded none of these a secondary loop system. zero ODP and have GWPs ranging from Several of these alternatives, such as refrigerants pose significantly greater 0 to 2,630. The refrigerants we are risk than for the refrigerants that are not R–407A, R–407F, and R–744, are in finding unacceptable through this action widespread use today in supermarket or do not contain VOC. Because the also have zero ODP, but they have risks other than GWP are not systems in the United States. EPA GWPs ranging from 2,730 to 3,985. With considers this widespread use as significantly different for the other the exception of R–717, the other available alternatives than for those we indicative of the availability of these available refrigerants have toxicity acceptable alternatives. HFC/HFO proposed to list as unacceptable and lower than or comparable to the because the GWP for the refrigerants we blends are also entering the market. For refrigerants whose listing status is instance, R–448A and R–449A are being proposed to list as unacceptable is changing from acceptable to significantly higher and thus poses used in supermarkets in the United unacceptable. Also, with the exception States and R–450A is in use in a significantly greater risk, we are listing the following refrigerants as 62 Cooling Post, 2014. Spanish store first to test unacceptable: HFC–227ea, R–404A, R– 61 HFC–22 and several blends containing HCFCs new R404A ‘‘drop-in.’’ October 5, 2014. Available are also listed as acceptable but their use is severely online at www.coolingpost.com/world-news/ 407B, R–421B, R–422A, R–422C, R– restricted by the phasedown in HCFC production. spanish-store-first-to-test-new-r404a-drop-in/. 422D, R–428A, R–434A, and R–507A.

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(2) When will the status change? equipment designed to use these nine listed above that remain acceptable have As explained here and in our refrigerants or servicing equipment that zero ODP as do those that we are finding responses to comments, EPA is was retrofitted to use those refrigerants unacceptable. The refrigerants finalizing a change of status date for before the July 20, 2016, status change remaining acceptable have GWPs new supermarket systems of January 1, date. For example, supermarket systems ranging from below 100 to 2,630, lower 2017. designed for use with or retrofitted to R– than the GWPs of the nine blends we are EPA noted in the NPRM, and multiple 404A or R–507A prior to July 20, 2016, finding unacceptable, which have GWPs commenters echoed, that supermarket may continue to operate and to be ranging from 2,730 to 3,985. All of the equipment using some of the acceptable serviced using those refrigerants. refrigerants remaining acceptable have alternatives, notably HFC–134a, R– (1) What other alternatives does EPA toxicity lower than or comparable to the 407A, R–407C, R–407F and R–744, is find pose lower overall risk to human refrigerants whose listing status is available today and has been used in health and the environment? changing from acceptable to supermarkets for several years. While unacceptable. None of the refrigerants some, but not all, manufacturers argued A number of other refrigerants are listed as acceptable for retrofit that remain acceptable or those that are more time was warranted to develop being listed as unacceptable are additional equipment and address supermarket systems: FOR12A, FOR12B, HFC–134a, IKON A, IKON B, flammable. Some of the refrigerant performance issues, they did not blends that remain acceptable and some provide adequate justification or KDD6, R–125/290/134a/600a (55.0/1.0/ 42.5/1.5), R–407A, R–407C, R–407F, R– of those that we are finding specificity on when such equipment unacceptable include small amounts (up would be available or when such issues 417A, R–417C, R–421A, R–422B, R– 424A, R–426A, R–427A, R–437A, R– to 3.4% by mass) of VOCs such as R– would be addressed. 600 (butane) and R–600a (isobutane). A supermarket system manufacturer 438A, R–448A, R–449A, R–450A, R– Because these amounts are small, and believed time was needed to develop 513A, RS–24 (2002 formulation), RS-44 contractor training materials. While EPA (2003 formulation), SP34E, THR–02, EPA’s analysis of hydrocarbon agrees that training is valuable, we note and THR–03.63 A technical support refrigerants shows that even when used below that such training is already document that provides the additional neat (100% by mass), they are not available and, given that acceptable Federal Register citations concerning expected to contribute significantly to alternatives have already been data on the SNAP criteria (e.g., ODP, ground level ozone formation (ICF, implemented in new supermarkets, we GWP, VOC, toxicity, flammability) for 2014e), these blends would also not do not see the need to delay our these alternatives may be found in the contribute significantly to ground level proposed status change date for new docket for this rulemaking (EPA, ozone formation. Because the risks other equipment in this end-use category 2015d). than GWP are not significantly different more than one year. Several of the alternatives that remain for the other available alternatives than However, one system manufacturer acceptable are in use today in the for those we proposed to list as noted that supermarket plans are United States for supermarket system unacceptable, and because the GWP for developed in time frames that could retrofits. While blends such as R–407A the refrigerants we proposed to list as hinder the proposed status change date and R–407F have become the norm, unacceptable is significantly higher and of January 1, 2016. EPA understands GreenChill partners also report use of thus poses significantly greater risk, we that such planning is necessary and we other refrigerants as retrofits in are listing the following refrigerants as are establishing a status change date of supermarket systems.64 Also, as noted unacceptable: R–404A, R–407B, R– January 1, 2017, to accommodate those earlier, R–450A was used to retrofit a 421B, R–422A, R–422C, R–422D, R– end users who have already planned supermarket system in Spain (Cooling 428A, R–434A, and R–507A. changes to their systems or may have Post, 2014). EPA regulations have eliminated or plans to manufacture a new system (e.g., In the preamble to the NPRM, EPA will eliminate by 2020 the production for a new store) but that may not have provided information on the risk to such systems operational in the period human health and the environment and import of HCFC–22. These and between the time this rule is issued and presented by the alternatives that are other regulations also affect end users January 1, 2016. As noted earlier, this being found unacceptable and those that who are using CFC–12, R–502, and change in the proposed status change remain acceptable. In addition, EPA several HCFC-containing blends such as date will affect those end users who are listed R–450A as acceptable on October R–401A, R–402A and R–408A. currently in the midst of planning for a 21, 2014 (79 FR 62863) and included Therefore, we believe that the impact of new system or a change to their existing information on its risk to human health this action addressing retrofits will system. A new system not ready for use and the environment. Concurrently with primarily affect those owners who are by January 1, 2017, would not be able this rule, EPA is also listing as faced with the choice of continuing to to use a refrigerant listed as acceptable R–448A, R–449A and R– operate systems with a refrigerant that unacceptable as of that date. 513A and including information on has been phased out of production and their risk to human health and the import or to switch to a refrigerant listed (b) Retrofit Supermarket Systems environment. As discussed above, the as acceptable for retrofit at the time the For retrofit supermarket systems, EPA producers of the substitutes that will retrofit occurs. proposed to list, as of January 1, 2016, remain acceptable do not expect supply Many retail chains maintain their own nine HFC blends as unacceptable: R– problems. In summary, the refrigerants stockpile of HCFC–22, for instance by 404A, R–407B, R–421B, R–422A, R– recovering from stores that are 422C, R–422D, R–428A, R–434A, and 63 HCFC–22 and several blends containing HCFCs decommissioned or retrofitted and using R–507A. In today’s final rule we are are also listed as acceptable but their use is severely finding these refrigerants unacceptable restricted by the phasedown in HCFC production. such supplies to service stores that in retrofit supermarkets as of July 20, 64 The GreenChill Advanced Refrigeration continue to operate with HCFC–22. In 2016. Partnership is a voluntary program with food addition, over four millions pounds of retailers to reduce refrigerant emissions and HCFC–22 has been reclaimed every year Consistent with the proposal, this decrease their impact on the ozone layer and action does not apply to servicing climate change. See since at least 2000 and over seven

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million pounds every year since 2006.65 the existing equipment, such as change of status date of 2018 for new Equipment operating with ODS different lubricants, new materials such equipment as store layouts of their refrigerants may continue to do so given as gaskets and filter driers, and customers are planned ‘‘up to three the supply of such materials in adjustments to expansion valves. These years in advance.’’ Another stockpiles and through the reclaim changes include readily available manufacturer, Lennox, requested three market. Thus, owners have the option to materials and common refrigeration years from the date of any final rule, a continue to operate this equipment practices. Such retrofits to acceptable position supported by AHRI, which also through its useful life with the alternatives are already occurring, and noted ‘‘alternatives are available and refrigerant they are using, such as the option to continue to operate and manufacturers have started re-designing HCFC–22. Regardless of the continued service existing systems remains; products to minimize or eliminate the supply of HCFC–22 and other ODS however, EPA received comment that use of high GWP refrigerants.’’ Master- refrigerants, we believe that the majority users may plan a ‘‘new store layout’’ in Bilt indicated that under the proposed of retrofits are planned for reasons other advance. While not specifically January 1, 2016, change of status date than the supply of the refrigerant referencing retrofits, a new layout of an for new supermarket systems, they currently in use; for instance, owners existing store may include the would convert to HFC–134a and R– may decide to retrofit when upgrading retrofitting of the existing supermarket 407A, but would have to address issues to more energy efficient equipment or system. Therefore, EPA is modifying the of energy efficiency and reliability. They during planned maintenance overhauls change of status date to provide a full believed ‘‘these HFCs will also be of their stores. year from publication of the final rule to banned as soon as lower GWP We see that many retrofits are already ensure that any supermarkets that may alternatives are available’’ and therefore directed towards lower-GWP blends have retrofits underway using a did not offer a long-term solution. such as R–407A and R–407F, which are refrigerant that will no longer be Instead, they stated blends with even widely available and remain acceptable acceptable will be able to complete lower GWPs than the ones remaining for such use under today’s rule, and not those retrofits ahead of the change of acceptable would be available in 1–3 those of the refrigerants whose status status date. While EPA did not receive years and requested a minimum of 3 will change to unacceptable under specific comments on the time to years from then to develop products. today’s rule. These two refrigerants (R– complete retrofits that are underway, it Zero Zone indicated that it has products 407A and R–407F), other available HFC is our understanding that any ongoing available for R–407A and R–407C, but blends, the additional HFC/HFO options retrofits can be completed within this needs time to address performance that EPA recently listed as acceptable, timeframe . issues. and other HFC/HFO blends that are Response: Several commenters being evaluated by chemical producers (c) How is EPA responding to comments indicated that many stores were already and equipment manufacturers, as well on retail food refrigeration (supermarket using alternatives other than the ones as the option of continuing to operate systems)? we proposed to list as unacceptable. with HCFC–22, are sufficient to meet Comment: Several commenters While two manufacturers of equipment, the various features—such as capacity, commented on the proposed January 1, Zero Zone and Lennox, and AHRI efficiency, materials compatibility, cost 2016 change of status date for new advocated for a later change of status and supply—that affect the choice of a supermarket systems. One supermarket date, they also indicated that products retrofit refrigerant.66 owner, Supermarket Company ABC, using refrigerants that will remain acceptable are already in use. (2) When will the status change? specifically supported the proposed 2016 date for both new and retrofit Hillphoenix and Hussmann, both of As explained here and in our systems. An industry organization whom offer supermarket systems with responses to comments, EPA is representing supermarkets, FMI, stated such refrigerants, and Supermarket establishing a change of status date for that ‘‘a majority of our members have Company ABC and FMI, who have used retrofit supermarkets of July 20, 2016. already voluntarily and proactively such products, did not indicate that In the NPRM and above, EPA pointed discontinued the use of R–404A, R–507 there were performance, efficiency or out that retrofits of supermarkets using and R–422D for new systems and as a reliability issues when using R–407A, acceptable alternatives are already retrofit refrigerant.’’ Two environmental R–407C or R–407F in supermarket occurring. Supermarket Company ABC organizations, NRDC and IGSD, systems. indicated that their experience with the supported the proposed 2016 date for We recognize the concern raised by use of R–407A in retrofits indicates the both new and retrofitted supermarket Hussmann regarding store layout plans availability and viability of it and other systems. One manufacturer of for new systems. Store design plans are alternatives. FMI similarly indicated generally developed well in advance of that many of its members have already supermarket systems, Hillphoenix, supported the change of status date of the physical change-over or stopped performing retrofits with construction, because of several refrigerants we are finding January 1, 2016, for HFC–227ea, R– 407B, R–421B, R–422A, R–422C, R– different factors related to construction unacceptable. EPA considers these and installation as well as the need to comments directly from the 422D, R–428A and R–434A in new and retrofit supermarket systems.67 address any commissioning, supermarket retailer to indicate that performance optimization or start-up adequate performance can be achieved Several other manufacturers of supermarket equipment, including procedures. Hussmann suggested a using refrigerants that will remain listed change of status date of 2018 to allow as acceptable. Hussmann, Master-Bilt, Lennox, and Zero Zone, and an association up to three years for design. Hussmann As indicated in section V.C.1.c above, did not indicate if the ‘‘up to three years retrofits may require various changes to representing such manufacturers— AHRI—suggested later dates for the in advance’’ for planning a new design was a typical planning cycle or a rare 65 change of status. Hussmann suggested a EPA, 2012a. The latest data on refrigerant maximum, nor did they indicate that reclamation can be found on EPA’s Web site at: www.epa.gov/spdpublc/title6/608/reclamation/ 67 They addressed the change of status date for R– any particular customer currently is in recsum_merged.pdf. 404A and R–507A with regard to stand-alone units the planning stage but will not have 66 For example, see CCAC, 2012. but not supermarket systems. equipment designed to use a refrigerant

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we are listing as unacceptable minimize or eliminate the use of high training is important, and we note that operational until 2018. We further note GWP refrigerants’’ but that there are already many manufacturers that the NPRM was proposed on August ‘‘manufactures need more time’’ on ‘‘the and suppliers who have been 6, 2014, and thus supermarkets were on re-design effort that started [a] few years conducting such training. For example, notice at that time that the refrigerants ago.’’ In general comments not specific Hillphoenix, a manufacturer of currently listed as acceptable would to the three retail food refrigeration end- supermarket systems and other possibly be unacceptable for use as of use categories addressed in the equipment affected by this rule, January 2016. In order to address proposal, AHRI also indicated that ‘‘a operates a learning center with courses concerns about those end users who typical design cycle takes an average 7 available including several on R–744 began planning prior to the proposal, we years from start to finish’’ for non- equipment.68 Learning material is also are establishing a change of status date flammable alternatives. Supermarket available from EPA’s GreenChill one year later than proposed for new Company ABC referenced the NPRM program, including for instance the supermarket systems and July 20, 2016 discussion of new supermarket systems GreenChill retrofit guidelines,69 which for retrofits. This will provide those end (79 FR 46144) and stated that their contain material on refrigerants R–407A, users who were in the planning stage ‘‘own experience and testing with R–407F and R–427A, all of which prior to the time of the proposal over R134a, CO2 and the R–407 series of remain acceptable in retrofit two years after issuance of the proposal refrigerants have demonstrated to our supermarket systems. For supermarket to ensure new supermarket systems are satisfaction that implementable systems, we note that alternatives such in place and operational and likewise alternatives to R–404A and R–507A are as R–407A have been in the market and approximately two years to complete available to meet that time frame’’ of have been used successfully for many any retrofits. January 1, 2016. years. Other alternatives, such as R– Response: The commenters have not Comment: Lennox noted that 448A, R–449A, R–450A and R–513A, provided sufficient information to are nonflammable and operate with supermarket system designs exist for R– support that alternatives will not be 407 series refrigerants, but stated that similar characteristics to HFC–134a or available for several years because of R–404A, and hence should require only manufacturers ‘‘need at least 3 years to technical constraints. As indicated in develop complete product lines, minimal extra training. EPA believes the the comments from AHRI, Lennox, and January 1, 2017, change of status date technical literature and contractor Zero Zone, manufacturers have been training materials.’’ Lennox did not for new supermarket systems, will allow working for the past several years to technicians that focus on particular end- indicate specifically how much time design systems using low GWP uses or end-use categories to obtain the was needed to complete their alternatives and as FMI noted many training they need and likewise for equipment development. Zero Zone Inc. supermarkets are already choosing to those that cover all end-uses and end- comments that the industry needs at use them. EPA noted in the proposal use categories to build their skills across least six years to make a smooth that R–407A systems have already those end-uses over time. We disagree complete transition away from R–404A, become a norm for supermarkets and that a need to develop complete R–507A, and HFC–134a; they indicated Supermarket Company ABC indicated it technical lines and technical literature this time was needed ‘‘to eliminate the was using R–407A in its comments. In are technical challenges that limit the performance issues and design product fact, EPA notes that the amount of R– availability of refrigerants for new that uses these refrigerants in the most 404A in use from partners participating energy efficiency manner.’’ In its in EPA’s GreenChill partnership supermarket systems beyond January comments regarding supermarket program reporting in 2012 and 2013 2017. systems, AHRI indicated low-GWP increased only 1.3%, while the amount 3. What is EPA finalizing for retail food alternatives are available and stated of R–407A in use increased 24%. Hence, refrigeration (remote condensing units)? research on other, lower-GWP we do not agree that a several year delay refrigerants was underway but requested in the change of status date is needed to The change of status determinations ‘‘a minimum of 3 years’’ to transition. accommodate design of systems. for retail food refrigeration (remote AHRI contended that ‘‘manufacturers With respect to contractor training, condensing units) is summarized in the have started re-designing products to EPA agrees proper education and following table:

TABLE 5—CHANGE OF STATUS DECISIONS FOR RETAIL FOOD REFRIGERATION (REMOTE CONDENSING UNITS)

End-use Substitutes Decision

Retail food refrigeration (remote condensing units) HFC–227ea, R–404A, R–407B, R–421B, R–422A, Unacceptable as of January 1, 2018. (new). R–422C, R–422D, R–428A, R–434A, R–507A. Retail food refrigeration (remote condensing units) R–404A, R–407B, R–421B, R–422A, R–422C, R– Unacceptable as of July 20, 2016. (retrofit). 422D, R–428A, R–434A, R–507A.

(a) New Remote Condensing Units 422C, R–422D, R–428A, R–434A, and information provided by commenters R–507A. In today’s final rule, we are concerning technical challenges with For new remote condensing units, finding that same list of nine HFC meeting the January 1, 2016, proposed EPA proposed to list, as of January 1, blends and HFC–227ea as unacceptable date. 2016, nine HFC blends and HFC–227ea as of January 1, 2018. The change from as unacceptable. The HFC blends are R– the proposal is in response to 404A, R–407B, R–421B, R–422A, R–

68 See www.hillphoenixlc.com/course- 69 EPA, 2011b. GreenChill Best Practices http://www2.epa.gov/sites/production/files/ curriculum/refrigeration-systems/. Guidelines, Commercial Refrigeration Retrofits. documents/retrofit_guideline_august_2011.pdf. August 2011. This document is accessible at

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(1) What other alternatives does EPA alternatives that will remain acceptable of status date. A January 1, 2018, change find pose lower overall risk to human could not be used in these systems. In of status date for remote condensing health and the environment? fact, information in the docket to this units recognizes the time needed for A number of other refrigerants are rule supports the feasibility of these redesign and testing to meet both listed as acceptable for new remote alternatives. For example, information regulatory obligations. in the Agency’s possession from a condensing units: FOR12A, FOR12B, (b) Retrofit Remote Condensing Units HFC–134a, IKON A, IKON B, KDD6, R– manufacturer of remote condensing 125/290/134a/600a (55.0/1.0/42.5/1.5), units provides an energy efficiency For retrofit remote condensing units, R–407A, R–407C, R–407F, R–410A, R– analysis for R–407A as compared with EPA proposed to list, as of January 1, 410B, R–417A, R–421A, R–422B, R– R–404A in remote condensing units, 2016, nine HFC blends as unacceptable: 424A, R–426A, R–437A, R–438A, R– with results ranging from 10% lower to R–404A, R–407B, R–421B, R–422A, R– 448A, R–449A, R–450A, R–513A, R– 1% higher in low-temperature 422C, R–422D, R–428A, R–434A, and 744, RS–24 (2002 formulation), RS–44 equipment and 0% to 6% higher in R–507A. In today’s final rule, we are (2003 formulation), SP34E, THR–02, medium-temperature equipment (EPA– establishing a change of status date for and THR–03.70 R–717 is acceptable in HQ–OAR–2014–0198–0184). For unit these refrigerants of July 20, 2016. remote condensing units when used as coolers, this information showed Consistent with the proposal, this the primary refrigerant in a secondary improved results of 4.3% to 13.3% in action does not apply to servicing loop system. medium-temperature applications. equipment designed to use these nine Some of these acceptable alternatives While the low-temperature applications refrigerants or servicing equipment that are currently in use in remote showed 3.6% to 6.7% decreases, it was was retrofitted to use those refrigerants condensing unit systems in the United noted this came ‘‘as the capacity before the January 1, 2018 status change States, such as R–407C and R–407F. increased;’’ hence, we expect date. For example, remote condensing Others, such as R–744 and adjustments to the equipment could units designed for use with or retrofitted hydrocarbons, while not indicated as in improve the efficiency while still to R–404A or R–507A prior to July 20, use in the United States, are being used meeting the original capacity 2016, are allowed to continue to operate in limited demonstration trials in requirements. In addition, Honeywell and to be serviced using those Europe and elsewhere. In addition, indicated that R–448A and R–449A, refrigerants. commenters have pointed out that which have been submitted to SNAP for (1) What other alternatives does EPA testing of low-GWP HFC/HFO blends is review in this end-use, are undergoing find pose lower overall risk to human underway; several of these HFC/HFO extensive field trials and that R–448A is health and the environment? blends have been submitted to EPA for ‘‘close to being qualified with numerous SNAP review in this end-use category manufacturers,’’ indicating that A number of other refrigerants are and four are listed as acceptable. manufacturers are developing listed as acceptable for retrofitting See section V.C.2.a.1 above for a equipment to use this alternative. remote condensing units: FOR12A, summary of our comparative assessment DuPont indicates that R–449A (also FOR12B, HFC–134a, IKON A, IKON B, of the SNAP criteria (ODP, GWP, VOC, referred to as DR–33 and XP40), which KDD6, R–125/290/134a/600a (55.0/1.0/ toxicity, flammability) for the has been submitted to SNAP for review 42.5/1.5), R–407A, R–407C, R–407F, R– refrigerants we are listing as in this end-use, works well in their tests 417A, R–417C, R–421A, R–422B, R– unacceptable with the other available of a display case connected to a remote 424A, R–426A, R–427A, R–437A, R– refrigerants. The refrigerants we are condensing unit. DuPont found that the 438A, R–448A, R–449A, R–450A, R– listing as unacceptable for new remote energy consumption for this refrigerant 513A, RS–24 (2002 formulation), RS–44 condensing units are the same as those in a remote condensing unit originally (2003 formulation), SP34E, THR–02, we are listing unacceptable for new designed for R–404A was 3% to 4% less and THR–03.71 supermarket systems. Likewise, the than R–404A in low-temperature tests Unlike retrofits of supermarket other available refrigerants are the same and 8% to 12% less in medium- systems, which are common, retrofits of for new remote condensing units as for temperature tests. remote condensing units are unusual. However, given that the operating new supermarket systems. For the same Although there are technically viable conditions and requirements between reasons as presented in section 2, EPA alternatives, we recognize the testing supermarket systems and remote concludes that there are other and certification needs for this condensing units are generally similar, refrigerants for use in new remote equipment. Compliance with DOE EPA believes blends such as R–407A, condensing units that pose lower overall energy conservation standards will be R–407C and R–407F are available risk to human health and the required on March 27, 2017 for options. environment than the alternatives we commercial refrigeration equipment and See section V.C.2.b.1 above for a are listing as unacceptable. on June 5, 2017 for walk-in coolers and summary of our comparative assessment freezers (see also section V.C.1.b above (2) When will the status change? of the SNAP criteria (ODP, GWP, VOC, and V.C.7 below). Commenters noted As explained here and in our toxicity, flammability) for the the challenges with timing for designing responses to comments, EPA is refrigerants we are listing as products with acceptable alternatives establishing a change of status date for unacceptable with the other available and testing these products to meet the new remote condensing units of January refrigerants. The refrigerants we are 2017 DOE energy conservation 1, 2018. listing as unacceptable for retrofit standards for commercial refrigeration Blends such as R–407A, R–407C and remote condensing units are the same as equipment and for walk-in coolers and R–407F are technically viable options. those we are listing as unacceptable for freezers. EPA agrees with the We did not receive any comments retrofit supermarket systems. Likewise, commenters that the challenge of suggesting that these or other the available alternatives for retrofit meeting both this status change rule and the DOE standards creates a significant 70 HCFC–22 and several blends containing HCFCs 71 HCFC–22 and several blends containing HCFCs are also listed as acceptable but their use is severely technical hurdle that would be difficult are also listed as acceptable but their use is severely restricted by the phasedown in HCFC production. to overcome by a January 2016 change restricted by the phasedown in HCFC production.

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remote condensing units are the same as and supply—that affect the choice of a Many equipment manufacturers those for retrofit supermarket systems. retrofit refrigerant. including: Hussmann; Continental For the same reasons as presented in Refrigerator; Nor-Lake; Master-Bilt (2) When will the status change? section V.C.2.b.1, EPA concludes that Products; International Cold Storage, there are other refrigerants for use in As explained here and in our Crown Tonka, and ThermalRite Walk- retrofit remote condensing units that response to comments, EPA is Ins; Lennox; and Manitowoc requested pose lower overall risk to human health establishing a change of status date for later dates for the status change ranging and the environment than the retrofit remote condensing units of July from 2018 to 2025. In some cases the alternatives we are listing as 20, 2016. date requested applied to new unacceptable. We did not receive any comments equipment in other end-use categories EPA regulations have eliminated or suggesting that alternatives that remain as well as new remote condensing units. will eliminate by 2020 the production acceptable could not be used in these AHRI suggested a minimum of six years and import of HCFC–22. These and systems. As noted above, Supermarket to transition. The North American other regulations also affect end users Company ABC indicated that they have Association of Food Equipment who are using CFC–12, R–502, and had success using R–407A to retrofit Manufacturers (NAFEM) and Howe several HCFC-containing blends such as HCFC–22 systems. Results from testing Corporation submitted comments that R–401A, R–402A and R–408A. of remote condensing units with R– were general rather than specific to any Therefore, we believe that the impact of 407A and R–449A are presented above particular refrigeration end-use. Based this action addressing retrofits will in section V.C.3.a.2. Those results on NAFEM’s membership and the primarily affect those owners who are showed increased energy efficiency products Howe discussed, EPA believes faced with the choice of continuing to and/or increased capacity with those these comments apply to remote operate systems with a refrigerant that refrigerants, indicating that they are condensing units and stand-alone viable for both new and retrofit has been phased out of production and equipment. Howe proposed that the equipment. As indicated in section import or to switch to a refrigerant listed status of R–404A and R–507A change V.C.1.c above, retrofits may require as acceptable for retrofit at the time the ‘‘no sooner than year 2024’’ while various changes to the existing retrofit occurs. NAFEM suggested a ten-year delay for equipment, such as different lubricants, As noted in section V.2.b.1, millions all of the refrigeration end-uses new materials such as gaskets and filter of pounds of HCFC–22 are reclaimed addressed in the proposed rule and driers, and adjustments to expansion every year, and this supply is available enumerated 14 tasks that they indicate valves. These changes include readily to remote condensing unit owners, are ‘‘necessary to safely introduce available materials and common operators and technicians, just as it is different/flammable refrigerants into the refrigeration practices. Such retrofits to available for supermarket owners, manufacturing process.’’ A separate operators and technicians. We also acceptable alternatives are already comment from NAFEM listed five noted that many retail chains have occurring, and the option to continue to phases, totaling 10 to 12 years, to adopt maintained their own stockpile of operate and service existing systems hydrocarbon refrigerants but also stated HCFC–22, for instance by recovering remains. However, as discussed in that ‘‘in no case should any from stores that are decommissioned or Section V.C.2.b.2 above, comments manufacturer be expected to transition retrofitted and using such supplies to indicate that a ‘‘new store layout’’ could prior to 2022.’’ These manufacturers and service stores that continue to operate be planned or otherwise underway, and industry associations cited concerns with HCFC–22. This same strategy is that such layout may include the over the availability of alternatives, the possible for those who own or operate retrofitting of existing remote need to design and test products using multiple facilities using remote condensing units to a refrigerant that condensing units. By establishing a will no longer be acceptable. Therefore, those alternatives, as well as other change of status date of July 20, 2016, by providing one full year from the final concerns that we summarize and we are providing owners and operators rule’s publication, EPA is providing address in the Response to Comments of remote condensing units the sufficient time for any such retrofits in Document that has been placed in the opportunity to begin to address any this end-use category to occur as docket. Several manufacturers indicated HCFC–22 supply concerns they may planned. that a January 1, 2016, change of status have. Thus, owners have the option to date would create significant difficulties (c) How is EPA responding to comments continue to operate this equipment in designing products with refrigerants on retail food refrigeration (remote through its useful life with the that remain acceptable while also condensing units)? refrigerant they are using, such as meeting the DOE energy conservation HCFC–22. Comment: Two environmental standards for commercial refrigeration Supermarket Company ABC indicated organizations, NRDC and IGSD, urged equipment and for walk-in coolers and that they have used R–407A to retrofit EPA to maintain the proposed status freezers that are scheduled to become HCFC–22 systems and that their change date of January 1, 2016, for new effective in 2017 (see also section experience indicates the availability and remote condensing units. Supermarket V.C.1.b above and V.C.7 below). In viability of this and other alternatives. Company ABC stated that they did not particular, the commenters claimed that The success of R–407A as a retrofit oppose the January 1, 2016, change of additional development of low- refrigerant, the other available HFC status date for new remote condensing temperature products may be necessary blends, the additional HFC/HFO options units. FMI, an industry organization to match current efficiency levels. that EPA recently listed as acceptable, representing supermarkets, a market Hussmann was concerned with the and the other HFC/HFO blends that are segment that also utilizes remote lead time of its customers in planning being evaluated by chemical producers condensing units, pointed out that ‘‘a store layouts with ‘‘remote systems,’’ and equipment manufacturers, as well majority of our members have already which could include remote condensing as the option of continuing to operate voluntarily and proactively units as well as supermarket systems, with HCFC–22, are sufficient to meet discontinued the use of R–404A, R–507, and indicated that a date of 2018 would the various features—such as capacity, and R–422D for new systems and as a allow its customers to better determine efficiency, materials compatibility, cost retrofit refrigerant.’’ what types of systems and refrigerants

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to use. Lennox proposed a ‘‘phased in supermarkets have already transitioned DuPont with R–449A showed a slight implementation timing by refrigerant away from the refrigerants we are listing improvement in efficiency, we consider equipment end-use category,’’ as unacceptable and are using a status change date of January 1, 2018, suggesting five years from publication of refrigerants that will remain acceptable to be adequate to adopt these or other the final for remote condensing units after this final action. Supermarket acceptable alternatives into new compared to three years for Company ABC stated that alternatives equipment and perform any testing and supermarkets and seven years for stand- were available, pointing towards their certification necessary. A January 1, alone units. AHRI similarly suggested experience with R–407A in retrofits and 2018, change of status date for new that the change of status date for remote HFC–134a, R–744 and the R–407 series remote condensing units will allow time condensing units occur after that of in new equipment. Information in the for manufacturers to redesign any supermarkets. Agency’s possession from a products that require additional Regarding HFC/HFO blend manufacturer of such equipment, engineering to meet both this rule and alternatives, Honeywell, indicates that explained above, is indicative that R– the DOE standards. In situations where supply of R–450A, an alternative listed 407A, among other available these refrigerants do not show energy as acceptable, will be available soon and alternatives, can be readily efficiency improvements, other design that R–448A and R–449A, which are implemented now in new remote changes as described in the DOE currently under SNAP review, are condensing units at medium- rulemakings and in the literature can be undergoing extensive field trials. temperature applications both during utilized to achieve required efficiencies. Honeywell further stated that R–448A is and after meeting DOE energy In addition, as indicated above, current ‘‘close to being qualified with numerous conservation standards for commercial manufacturers,’’ indicating that refrigeration equipment and for walk-in research and testing on some HFC/HFO manufacturers are developing coolers and freezers. However, the blends show similar or better energy equipment to use this refrigerant. information showed efficiency losses for efficiency for these products. DuPont indicated that R–449A works this refrigerant in low-temperature While we agree than a short well in their tests of a display case applications. Although DuPont points to additional amount of time is needed to connected to a remote condensing unit. positive results using R–449A in a address these technical challenges and Response: Supermarket Company display case connected to a remote the testing and certification ABC and FMI as well as environmental condensing unit, this refrigerant too requirements for new equipment, we organizations supported or did not showed lower energy efficiency in low- disagree with commenters who suggest oppose the proposed status change date temperature than medium-temperature that a lengthy period is needed prior to of January 1, 2016. A number of other conditions. Both comments indicate that the change of status. NAFEM estimated commenters supported a later date there is a more significant challenge for 10 to 12 years to adopt hydrocarbon ranging from 2017 to as late as 12 years low-temperature applications. refrigerants; however, as hydrocarbons after this action is finalized. The Thus, while there has been significant are not listed as acceptable for remote comments requesting later status change progress in transitioning to alternatives condensing units, and no schedule was dates either did not address retrofits or that will remain acceptable in medium- provided for nonflammable refrigerants, did not provide adequate information temperature applications, there has been EPA views this comment as pertaining indicating why a date earlier than that less progress in doing so for low- to stand-alone equipment. (See section for new remote condensing units would temperature applications. However, the V.C.4 below). All of the refrigerant be infeasible for retrofit equipment. information provided by Honeywell and blends that remain acceptable are Although some use of alternatives is DuPont indicates that significant nonflammable and some were designed already occurring, we agree with the additional time will not be needed to mimic HFC–134a and R–404A. EPA commenters that certain technical before equipment is available. In believes that these can be adopted into challenges still exist that support a recognition that new remote-condensing manufacturers’ products with minor change of status date later than we unit equipment will need to meet DOE changes while still meeting the DOE proposed for new and retrofit and National Sanitation Foundation requirements. The commenters failed to equipment. However, we do not agree (NSF) standards, and some efficiency identify specific technical challenges that significant additional time is challenges exist particularly with low- that would support a more lengthy needed before alternatives listed as temperature equipment, we are delay in the change of status date. acceptable will be available for new establishing a status change date of equipment. January 1, 2018, for new remote 4. What is EPA finalizing for retail food There are alternatives that are not condensing units and July 20, 2016 for refrigeration (stand-alone equipment)? subject to a status change that are used retrofits. already in new and retrofit remote Given that the low-temperature The change of status determination condensing units and others are being results with R–407A showed only 3.6% for retail food refrigeration (stand-alone developed and deployed. As supported to 6.7% efficiency declines along with equipment) is summarized in the by the comments from FMI, many capacity increases, and those from following table:

TABLE 6—CHANGE OF STATUS DECISIONS FOR STAND-ALONE EQUIPMENT

End-use Substitutes Decision

Retail food refrigeration (stand-alone medium-tem- FOR12A, FOR12B, HFC–134a, HFC–227ea, Unacceptable as of January 1, 2019. perature units 72 with a compressor capacity KDD6, R–125/290/134a/600a (55.0/1.0/42.5/ below 2,200 Btu/hr and not containing a flooded 1.5), R–404A, R–407A, R–407B, R–407C, R– evaporator) (new). 407F, R–410A, R–410B, R–417A, R–421A, R– 421B, R–422A, R–422B, R–422C, R–422D, R– 424A, R–426A, R–428A, R–434A, R–437A, R– 438A, R–507A, RS–24 (2002 formulation), RS– 44 (2003 formulation), SP34E, THR–03.

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TABLE 6—CHANGE OF STATUS DECISIONS FOR STAND-ALONE EQUIPMENT—Continued

End-use Substitutes Decision

Retail food refrigeration (stand-alone medium-tem- FOR12A, FOR12B, HFC–134a, HFC–227ea, Unacceptable as of January 1, 2020. perature units with a compressor capacity equal KDD6, R–125/290/134a/600a (55.0/1.0/42.5/ to or greater than 2,200 Btu/hr and stand-alone 1.5), R–404A, R–407A, R–407B, R–407C, R– medium-temperature units containing a flooded 407F, R–410A, R–410B, R–417A, R–421A, R– evaporator) (new). 421B, R–422A, R–422B, R–422C, R–422D, R– 424A, R–426A, R–428A, R–434A, R–437A, R– 438A, R–507A, RS–24 (2002 formulation), RS– 44 (2003 formulation), SP34E, THR–03. Retail food refrigeration (stand-alone low-tempera- HFC–227ea, KDD6, R–125/290/134a/600a (55.0/ Unacceptable as of January 1, 2020. ture units 73) (new). 1.0/42.5/1.5), R–404A, R–407A, R–407B, R– 407C, R–407F, R–410A, R–410B, R–417A, R– 421A, R–421B, R–422A, R–422B, R–422C, R– 422D, R–424A, R–428A, R–434A, R–437A, R– 438A, R–507A, RS–44 (2003 formulation). Retail food refrigeration (stand-alone units only) R–404A and R–507A ...... Unacceptable as of July 20, 2016. (retrofit).

(a) New Stand-Alone Equipment 507A, and RS–44 (2003 formulation). FOR12A, FOR12B, R–426A, RS–24 While EPA proposed to change the For new stand-alone equipment, EPA (2002 formulation), SP34E and THR–03 status from acceptable to unacceptable proposed to list HFC–134a and 31 other remain acceptable without use for FOR12A, FOR12B, HFC–134a, R– refrigerants for new stand-alone retail conditions and are not subject to a food refrigeration equipment 426A, RS–24 (2002 formulation), SP34E, change of status date in new stand-alone unacceptable, as of January 1, 2016. In and THR–03 in all new stand-alone low-temperature equipment. Also, today’s final rule, EPA is subdividing equipment, EPA is not changing the concurrently with this rule, EPA is the new retail food refrigeration (stand- status for these refrigerants in this final listing R–448A and R–449A acceptable alone equipment) end-use category. For rule in stand-alone low-temperature without use conditions for new stand- new stand-alone medium-temperature equipment, or for IKON B for any stand- alone low-temperature equipment. EPA units with a compressor capacity below alone equipment, for the reasons is aware of equipment deployment 2,200 Btu/hr and not containing a provided below. EPA clarifies below using R–744 and HFC–134a. We are not flooded evaporator, EPA is changing the how the compressor capacity is to be aware of such deployment with respect determined as well as how to listing for HFC–134a and 30 other to any other of these substitutes, distinguish medium-temperature and refrigerants from acceptable to although we are aware that several are unacceptable as of January 1, 2019. low-temperature stand-alone equipment. undergoing research and testing. The These 30 other refrigerants are FOR12A, producer of R–450A, Honeywell, stated FOR12B, R–426A, RS–24 (2002 (1) What other alternatives does EPA that the supply of R–450A is ‘‘soon to formulation), SP34E, THR–03 and 24 find pose lower overall risk to human be available.’’ Although we did not see additional refrigerants, listed below, for health and the environment? evidence that products were produced which EPA is changing the status in all with the HFC/HFO blends that are listed EPA has listed R–290, R–600a and R– types of stand-alone equipment. For as acceptable, publicly-available 441A acceptable subject to use new stand-alone medium-temperature literature indicates that R–448A, R– units with a compressor capacity equal conditions in new stand-alone 449A, R–450A, R–513A and others are to or greater than 2,200 Btu/hr and all equipment. R–290 is already in use under investigation. For example, R– stand-alone medium-temperature units globally, including in the United States, 513A (trade name XP10) was tested in containing a flooded evaporator, EPA is and R–600a is in use outside of the changing the listing of HFC–134a and United States as well as in test market commercial bottle cooler/freezer under the same 30 other refrigerants from trials in the United States. For instance, test 008 of AHRI’s Low-GWP Alternative acceptable to unacceptable as of January at a recent exposition, stand-alone Refrigerants Evaluation Program 76 1, 2020. For new stand-alone low- equipment using R–290 was displayed research. The Refrigeration and Air temperature units, EPA is changing the by multiple companies and component Conditioning Magazine quoted status from acceptable to unacceptable suppliers exhibited compressors, filter Emerson, a major supplier of of 24 refrigerants as of January 1, 2020. driers, controls and expansion valves compressors for this industry, as saying The 24 refrigerants are: HFC–227ea, that are designed to use R–290 or R– it is ‘‘prepared to support customers and KDD6, R–125/290/134a/600a (55.0/1.0/ 600a.74 devote more resources to qualifying 42.5/1.5), R–404A, R–407A, R–407B, R– R–450A, R–513A, R–744, IKON A, lower-GWP A1 refrigerant alternatives 407C, R–407F, R–410A, R–410B, R– IKON B and THR–02 are listed as such as R448A, R449A, R–450A and 417A, R–421A, R–421B, R–422A, R– acceptable substitutes in new stand- 422B, R–422C, R–422D, R–424A, R– alone equipment without use http://www.hydrocarbons21.com/news/ 428A, R–434A, R–437A, R–438A, R– conditions.75 In addition, HFC–134a, viewprintable/6143.’’ 76 Shapiro, Doron. ‘‘System Drop-In Tests of R– TM 72 ‘‘Medium-temperature’’ refers to equipment 74 See ‘‘New regulations inspire hydrocarbon 134a, R–1234yf, Opteon XP10, R–1234ze(E), and that maintains food or beverages at temperatures displays at U.S. NAFEM Show,’’ N13a in a Commercial Bottle Cooler/Freezer’’, above 32 °F (0 °C). www.hydrocarbons21.com/news/view/6143. January 25, 2013. This document is accessible at 73 ‘‘Low-temperature’’ refers to equipment that 75 Shecco, 2015. ‘‘New Regulations Inspire http://www.ahrinet.org/App_Content/ahri/files/ maintains food or beverages at temperatures at or Hydrocarbon Displays at U.S. NAFEM Show, RESEARCH/AREP_Final_Reports/AHRI%20Low- below 32 °F (0 °C). February 24, 2015. This document is accessible at GWP%20AREP-Rpt-008.pdf.

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R513A.’’ 77 EPA addressed the supply of VOC or not expected to contribute can satisfy the vast majority of the these HFC/HFO blends, and specifically significantly to ground level ozone current market for refrigerants in stand- the production of HFO–1234yf and formation). Because the risks other than alone equipment.’’ We are aware of HFO–1234ze(E), which are components GWP are not significantly different for products using R–290, R–600a and R– of these blends, above in section the other available alternatives than for 744 that are already on the market. V.C.2.a.1. those we are listing as unacceptable and According to Shecco, based on its In the preamble to the NPRM, EPA because the GWP for the refrigerants we October 2014 survey, the manufacturers provided information on the risk to are listing as unacceptable is of stand-alone equipment they surveyed human health and the environment significantly higher and thus poses ‘‘are already today able to produce presented by the alternatives that are significantly greater risk, we are listing sufficient amount of such [R–290, R– being found unacceptable compared the following refrigerants as 600a and R–744] equipment to cover the with other alternatives, including unacceptable for new stand-alone needs of the entire market. All of the several refrigerants listed as acceptable medium-temperature refrigeration interviewed manufacturers confirmed (October 21, 2014, 79 FR 62863) or equipment: FOR12A, FOR12B, HFC– that they plan to covert [sic] their whole acceptable, subject to use conditions 134a, HFC–227ea, KDD6, R–125/290/ manufacturing facilities to hydrocarbons (April 10, 2015; 80 FR 19453) after the 134a/600a (55.0/1.0/42.5/1.5), R–404A, and/or CO2 by 2018/2019 latest.’’ While NPRM was issued. A technical support R–407A, R–407B, R–407C, R–407F, R– the alternatives that remain acceptable document that provides the additional 410A, R–410B, R–417A, R–421A, R– will be able to meet the technical Federal Register citations concerning 421B, R–422A, R–422B, R–422C, R– constraints for this equipment, time will data on the environmental and health 422D, R–424A, R–426A, R–428A, R– be needed for the transition to occur. On properties (e.g., ODP, GWP, VOC, 434A, R–437A, R–438A, R–507A, RS–24 the aspect of timing, Shecco, toxicity, flammability) for the acceptable (2002 formulation), RS–44 (2003 Supermarket Company ABC, Hatco, and alternatives as well as those we are formulation), SP34E, and THR–03. H&K International suggested a 2018 finding unacceptable may be found in For stand-alone low-temperature change of status date, while DuPont and the docket for this rulemaking (EPA, refrigeration equipment, the substitutes Honeywell suggested 2017. NRDC and 2015d). that remain acceptable have zero-ODP IGSD believed EPA should maintain the In summary, for stand-alone medium- and GWPs ranging from 1 to about proposed January 1, 2016, change of temperature refrigeration equipment, 1,500. The alternatives we are listing as status date. In contrast, numerous other the substitutes listed above that remain unacceptable have GWPs ranging from manufacturers of stand-alone equipment acceptable have zero ODP and GWPs approximately 1,800 to 3,985. For the indicated concerns with hydrocarbons ranging from 1 to about 630. In contrast, other risk criteria we review, the and R–744, and some referenced HFC/ the alternatives that we are listing as analysis provided above for stand-alone HFO blends as a potential solution. unacceptable for stand-alone medium- medium-temperature refrigeration They recommended change of status temperature equipment also have zero equipment applies also to for the dates ranging from 2020 to 20 years after ODP and they have GWPs ranging from alternatives that remain acceptable and the rule becomes final. While we agree approximately 900 to 3,985. Three of the those we are listing as unacceptable. that manufacturers will be able to substitutes that remain acceptable, R– Because the risks other than GWP are produce equipment using lower-GWP 290, R–600a, and R–441A, are or are not significantly different for the other refrigerants addressing a large portion of composed primarily of VOC. EPA’s available alternatives than for those we the market in the period of 2016–2018, analysis indicates that their use as proposed to list as unacceptable and we also agree that there are some refrigerants in this end-use are not because the GWP for the refrigerants we technical challenges that support a expected to contribute significantly to proposed to list as unacceptable is change of status date of 2019 or 2020 for ground level ozone formation (ICF, significantly higher and thus poses this end-use category. 2014e). These three substitutes are also significantly greater risk, we are listing Manufacturers indicated several flammable; however, the use conditions the following refrigerants as necessary steps that will need to occur, specified ensure that they do not pose unacceptable for new stand-alone low- including development and testing of greater overall risk than any of the temperature refrigeration equipment: components, such as compressors and substitutes currently listed as acceptable HFC–227ea, KDD6, R–125/290/134a/ condensing units, for the full range of in new stand-alone medium- 600a (55.0/1.0/42.5/1.5), R–404A, R– stand-alone products. In addition, temperature equipment.78 None of the 407A, R–407B, R–407C, R–407F, R– engineering, development, and testing refrigerants currently listed as 410A, R–410B, R–417A, R–421A, R– to meet standards, such as those from acceptable present significant human 421B, R–422A, R–422B, R–422C, R– UL, DOE and NSF, of the products health toxicity concerns or other 422D, R–424A, R–428A, R–434A, R– would start as components became ecosystem impacts. In comparison, the 437A, R–438A, R–507A, and RS–44 available. Modifications to the factory refrigerants we are finding unacceptable (2003 formulation). could be required, ranging from a are similar in ODP (zero ODP), simpler change of the refrigerant storage (2) When will the status change? flammability (low risks of flammability), area to reconfiguration of the factory to toxicity (low toxicity), and VOC (non- We are establishing a status change address concerns such as ventilation or date of January 1, 2019, for new stand- other safety measures. Information 77 Gaved, 2015. ‘‘Emerson Climate Technologies alone medium-temperature equipment submitted by the commenters supported offers to help supply chain move to lower-GWP with a compressor capacity below 2,200 that these actions could take a few refrigerants,’’ www.racplus.com/news/-emerson- Btu/hr and not containing a flooded climate-technologies-offers-to-help-supply-chain- months or up to a couple of years. move-to-lower-gwp-refrigerants/8677708.article. evaporator, and a status change date of However, it is likely that these actions 78 The risks due to the flammability of these January 1, 2020, for all other types of could occur simultaneously with other refrigerants in this end-use were analyzed in the new stand-alone equipment. For this steps such as equipment design and SNAP rules finding them acceptable subject to use equipment, there are several alternatives testing. conditions (December 20, 2011; 76 FR 78832 and April 10, 2015; 80 FR 19453). Refer to Docket ID that can meet the technological needs of Manufacturers identified three No. EPA–HQ–OAR–2009–0286 and EPA–HQ– the market. EIA states that ‘‘R–744, R– distinct refrigerant types. For OAR–2013–0748. 290, R–441A, and isobutene (‘R–600a’) hydrocarbons, including R–290, we do

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not see any question regarding chemical supply, as supported by commenters the performance of either HFC–134a or supply. NAMA and True Manufacturing such as Hillphoenix, Coca-Cola, Parker- R–404A, refrigerants in predominant indicated that components have already Hannifin, and HC Duke & Son/Electro- use currently. Thus, as compared with been designed globally, including in the Freeze, there has been limited hydrocarbons and R–744, there should United States, using both R–290 and R– development of components and be fewer technical challenges in 600a. Danfoss, Manitowoc and Unified development of necessary components developing equipment using these Brands indicated that 1–2 years are in a variety of sizes could take two to alternatives. Several commenters, needed to develop air-cooled three years. including Master-Bilt, Structural condensing units for R–290. Designing stand-alone equipment Concepts, and Hoshizaki America, Components using other hydrocarbon with R–744 presents challenges such as supported that transition to these refrigerants, such as R–441A have not the need for a complete system redesign alternatives would be simpler and been developed, but these refrigerants due to higher pressures and the different quicker once components have been are offered for sale in the U.S. and are thermodynamic and transport developed and there are adequate in ample supply. properties. Additionally, as supported supplies. EPA believes that much of the by commenters such as HC Duke & Son/ In summary, should manufacturers component and equipment development Electro-Freeze, while CO2 system choose to pursue HFC/HFO blends, EPA can occur at the same time; in other efficiency is good at lower ambient expects such equipment would be words, as certain components become temperatures, CO2 system efficiency widely available in about four years and available, appropriate units could be suffers at higher temperatures. Thus, it that R–450A could be available earlier redesigned using those components, may take additional time to develop as it was the first such blend found prototypes could be built and tested, components and equipment for both acceptable under SNAP. This includes and final designs could be produced, medium and low-temperature one to two years for supplies to become while additional components are applications. widely available, approximately one released. Indeed, it appears that many Although it may not be feasible to year for development and testing of manufacturers have already identified a develop R–744 equipment for the full components, and approximately one portion of their products that they could spectrum of stand-alone equipment by a year for equipment development. The redesign using R–290, as discussed status change date of January 1, 2019, short time for development of below. Once product models are other alternatives, such as the components and equipment is due to designed, testing and certification could hydrocarbons and HFC/HFO blends the fact that the properties of the blends take place. would be available for those uses by the are similar to the refrigerants most In summary, to use hydrocarbon January 1, 2019, status change date. manufacturers are currently using. refrigerants, such as R–290, the The third group of alternatives is the Similarly, we expect that there would be comments support that approximately HFC/HFO blends. Refrigerant producers limited factory modifications, if any, three and a half years is needed for DuPont and Honeywell provided and that these could occur concurrently equipment to become fully available. detailed comments on the development with the design work. As with other This includes one to two years to of specific HFC/HFO blends and EPA refrigerants, EPA would expect develop additional components beyond listed one of these, R–450A, as equipment testing and certification to be those that are currently available and to acceptable in October 2014. rolled out as equipment models are test the current and newly developed Concurrently with this rule, EPA is also redesigned, with the last units being components in models. Equipment listing R–513A as acceptable in all available approximately six to twelve development and testing would occur in stand-alone equipment and two months after designs are developed. series, with the final units being additional HFC/HFO blends, R–448A We are finalizing a status change date developed and ready for testing and R–449A, acceptable in stand-alone of January 1, 2020, for stand-alone low- approximately one year after the low-temperature equipment. temperature retail food refrigeration components for that unit were available. Some samples of these refrigerants are units; stand-alone medium-temperature Testing and certification would likewise available today and are being tested, as retail food refrigeration units with a occur as products were developed and supported by comments from AHRI. compressor capacity equal to or would span two to three years, much of However, supplies of some of these exceeding 2,200 Btu/hr; and stand-alone which while other actions are occurring. blends are limited at this time because retail food refrigeration units employing We estimate the final units might take of limits on some of the HFO a flooded evaporator. an additional six months to a year to test components, HFO–1234yf and HFO– For these three types of stand-alone and certify once developed. As 1234ze(E). However, as discussed above equipment, we find that an additional discussed above, any required in section V.C.2.a.1, production year beyond January 1, 2019, is needed modifications to the factory line and facilities for these refrigerants have for the change of status. For equipment facilities would occur concurrently if a commenced operation and thus, as using a flooded evaporator, Emerson manufacturer chose to use R–290 or supported by Honeywell and DuPont, indicated the lower-GWP refrigerants another acceptable hydrocarbon we expect adequate supplies to be are all ‘‘high glide’’ often in the range of refrigerant. Hence, EPA believes that available by January 2017 if not before. 7 °F to 10 °F (3.9 °C to 5.6 °C), and that new stand-alone equipment for Unified Brands and Structural Concepts such a characteristic presents unique medium-temperature applications with indicated that components for HFC/ redesign and performance challenges. a compressor capacity below 2,200 Btu/ HFO equipment are being tested and Because of this unique design challenge hr and not containing a flooded developed today and Unified Brands that will require additional time to evaporator could be available and in further projected that it would be three address, we are establishing a January 1, compliance with a status change date of years for a full line of production-ready 2020, change of status date for new January 1, 2019. components. stand-alone equipment that utilizes a The steps in developing products for HFC/HFO blends found acceptable to flooded evaporator. R–744 would be similar and on a similar date or submitted to the SNAP program The second segment of the stand- time frame as those for hydrocarbons. are nonflammable, acceptable without alone equipment end-use category that However, although R–744 is in wide use conditions, and designed to mimic we found faced particular technical

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challenges was equipment designed to use condition applies to the alternative R–744 or the newly listed HFC/HFO hold products at low temperatures. The refrigerants that are the farthest along in blends R–448A, R–449A, R–450A and choice of refrigerant is in part design and testing for this end-use R–513A. Therefore, we have established determined by the desired temperature category, specifically, R–290 and R– a later status change date of January 1, that food or beverage will be stored. As 600a. Because larger equipment often 2020, for ‘‘large’’ stand-alone with ‘‘large’’ equipment, discussed needs refrigerant charges that are larger equipment. below, commenters, including than those provided in the use A few commenters addressed how Hussmann and Hillphoenix, indicated conditions, we sought comment on EPA could distinguish ‘‘small’’ from that the charge size limits that apply to possible technical challenges in ‘‘large’’ stand-alone equipment. Nor- the hydrocarbon refrigerants could limit transitioning to another alternative and Lake suggested a dividing line and their use in low-temperature equipment, asked how charge size limits for these recommended that it could be set based although for some equipment, it may be flammable refrigerants might affect our on compressor capacity, pointing to possible to redesign equipment to use determination of whether and when 2,400 Btu/hr and 2,200 Btu/hr for multiple circuits. In addition, these alternatives that pose lower risk are medium and low-temperature freezer commenters further note that HFC–134a available for larger equipment. In the systems, respectively. Hillphoenix also was not a workable refrigerant for low- NPRM, we sought comment on the recommended looking at refrigerant temperature applications, and thus possibility of establishing a use capacity and performed an analysis that, some of the HFC/HFO alternatives, restriction that would allow continued under specific design prescriptions, specifically R–450A and R–513A, which use of some refrigerants for which we indicated the maximum capacity were designed to perform similarly to would otherwise change the status in achievable using 150 grams of R–290 HFC–134a, would likewise not be ‘‘large’’ stand-alone equipment. We would be 4,800 Btu/hr and 1,600 Btu/ workable in these applications. sought comment on how we could hr for medium-and low-temperature However, other HFC/HFO alternatives, define ‘‘large’’ and ‘‘small’’ stand-alone applications, respectively. Supermarket such as R–448A and R–449A, designed units in particular considering charge Company ABC suggested making a to perform similarly to R–404A could be size. distinction based on interior volume available for low-temperature uses. Several commenters addressed these and refrigeration requirements, but did We believe that these technical issues during the comment period. not offer specifics. Southern Case Art challenges for stand-alone low- Lennox said that over 98% of its ‘‘basic, indicated difficulty with using R–290 in temperature equipment will mean the self-contained refrigeration models its products that are open-display units date upon which technically feasible exceed 500 grams of refrigerant charge,’’ reaching capacities up to 25,000 Btu/hr. solutions are available will be later than precluding the use of flammable Unified Brands indicated R–290 small, medium-temperature equipment. refrigerants in just one circuit. compressors are available to provide For this reason, we are finalizing a Manitowoc and Nor-Lake indicated that cooling capacity up to 5,000 Btu/hr for change of status date of January 1, 2020, if they were to use R–290, multiple medium-temperature and 2,000 Btu/hr for stand-alone low-temperature refrigeration circuits would be required in low-temperature applications. equipment. considering the 150 gram use condition Traulsen requested a narrowed use EPA points to the 2014 ASHRAE that applies to that refrigerant. Some exemption for ‘‘large stand-alone units Handbook on Refrigeration, Chapter 15, manufacturers discussed the technical requiring 2 or more systems to operate which reads ‘‘medium-temperature difficulties with using multiple circuits. within the 150 gram limit.’’ refrigeration equipment maintains an Hillphoenix noted that the use of We believe that the compressor evaporator temperature between 0 and multiple compressors, each tied to an capacity limits are a reasonable, easily- 40 °F [¥18 and 4.4 °C] and product individual condensing unit, would understood and easily-enforceable temperatures above freezing; low- require ‘‘more complex control method to distinguish between products temperature refrigeration equipment synchronization that customers must be that may be unable to rely on flammable maintains an evaporator temperature willing to master’’ and raised a concern refrigerants or that will face greater between ¥40 and 0 °F [¥40 and ¥18 about whether customers would do so. challenges in doing so, and those that °C] and product temperatures below For some equipment, space constraints are more easily able to use flammable freezing.’’ We believe the product would limit the practicality of using refrigerants consistent with the 150- temperature is a more widely multiple, separate refrigeration circuits. gram charge size limits established in understood criteria, especially amongst Minus Forty indicated that ‘‘A the use conditions. We considered equipment owners and users and for significant number of our models cannot separate capacity limits for medium and purposes of compliance, and therefore be or would be very impractical to low-temperature systems as suggested clarify here that for purposes of this rule transition to R–290 due to their size, by Nor-Lake and analyzed by ‘‘stand-alone medium-temperature shape, and custom uniqueness.’’ Nor- Hillphoenix, but determined that equipment’’ is defined as that which is Lake stated that multiple circuit establishing just one value would designed to maintain product equipment would use more energy and provide more clarity and ease of temperatures above 32 °F (0 °C) and believed that the ‘‘energy efficiency of a implementation. We chose the lower of ‘‘stand-alone low-temperature dual system may also create issues with Nor-Lake’s capacity of 2,200 Btu/hr as a equipment’’ is defined as that which is meeting DOE energy requirements.’’ dividing line and explain how this designed to maintain product EPA agrees that there are additional applies further below. In setting one temperatures at or below 32 °F (0 °C). technical challenges faced in converting value, however, we considered the For large stand-alone equipment with this equipment that use large charge similarity of the capacities suggested by additional cooling capacity sizes. In some instances, the challenge Nor-Lake, and the fact that these came requirements, there are challenges with may be in developing multi-circuit within the range of sizes analyzed by using a number of the lower-GWP systems that use refrigerants subject to Hillphoenix. refrigerants because the refrigerants are the charge-size use limits. In other Although the 2,200 Btu/hr compressor subject to use conditions, including a cases, where multiple circuits are not an capacity delineation was based on the restriction limiting the charge size to option, these manufacturers will need particular comment from Nor-Lake, 150 grams per circuit. The charge size additional time to evaluate refrigerants neither that commenter nor others

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indicated how that capacity would be (1) What other alternatives does EPA other available refrigerant blends determined. EPA believes consensus find pose lower overall risk to human include small amounts (up to 3.4% by standards from AHRI, an association health and the environment? mass) of VOC such as R–600 (butane) representing manufacturers of such While we do not believe retrofits are and R–600a (isobutane). However, these equipment, may be used for this common in stand-alone retail food amounts are small, and EPA’s analysis purpose. In today’s final rule, we are refrigeration equipment, a number of of hydrocarbon refrigerants shows that indicating that the capacity for a stand- refrigerants are listed as acceptable for even when used neat, they are not alone unit is to be calculated based on this purpose: FOR12A, FOR12B, HFC– expected to contribute significantly to the compressor ratings as determined 134a, IKON A, IKON B, KDD6, R–125/ ground level ozone formation (ICF, under AHRI 540–2004, Performance 290/134a/600a (55.0/1.0/42.5/1.5), R– 2014e). Because the risks other than Rating of Positive Displacement 407A, R–407B, R–407C, R–407F, R– GWP are not significantly different for Refrigerant Compressors and 417A, R–417C, R–421A, R–421B, R– the other available alternatives than Compressor Units. Although ‘‘capacity’’ 422A, R–422B, R–422C, R–422D, R– those we are listing as unacceptable and is not a rating specifically to be listed 424A, R–426A, R–427A, R–428A, R– because the GWP for the refrigerants we under that standard, we note that 434A, R–437A, R–438A, R–450A, R– are listing as unacceptable is ‘‘Compressor or Compressor Unit 513A, RS–24 (2002 formulation), RS–44 significantly higher and thus poses Efficiency’’ and the ‘‘Power Input,’’ (2003 formulation), SP34E, THR-02, and significantly greater risk, we are listing which are defined in that standard THR-03.79 R–448A and R–449A are also the following refrigerants as under clauses 3.1 and 3.4, respectively, listed acceptable for retrofitting stand- unacceptable for retrofit stand-alone are required data for the compressor to alone low-temperature units. We also refrigeration equipment: R–404A and R– be listed, per clause 6.2. The compressor note that many of the refrigerants 507A. capacity is the product of those two remaining acceptable are blends with (2) When will the status change? items, with adjustment to ensure the small amounts of hydrocarbons. The Commenters did not indicate any result is in the correct units (i.e., Btu/ hydrocarbon content allows the technical challenges in retrofitting hr). Although a range of capacities may possibility of retrofitting equipment stand-alone equipment with the be calculated, EPA is clarifying that to from an ODS (which would have used refrigerants that remain acceptable. In determine whether the compressor alkylbenzene or a mineral oil) without fact, EIA felt ‘‘The poor energy capacity is equal to or above 2,200 Btu/ changing the lubricant, whereas usually efficiency performance of R–404A is hr, we expect the manufacturer to use a polyolester is required when another compelling reason to delist this Table 1 of the standard and choose the retrofitting to an HFC or HFC blend. refrigerant and replace it with R–134a ‘‘Standard Rating Condition’’ (defined Thus we believe these refrigerants are for retrofits, which by comparison, has in clause 3.6.1) most appropriate for the designed for and would prove shown a 10 percent efficiency gain.’’ design and intended use of the product. successful in retrofits of stand-alone EPA notes that five standard rating equipment, should such a retrofit be EPA does not believe retrofits are nearly conditions are listed in the standard, for desired by the owner. as common for stand-alone equipment instance at Suction Dew Point In the preamble to the NPRM, EPA as for other retail food refrigeration uses Temperatures—which is related to the provided information on the risk to considered in this final rule, designed food or beverage temperature human health and the environment particularly supermarket systems. within the equipment—of 45 °F (7.2 °C), presented by the alternatives that are However, similar to the other types of 20 °F (¥6.7 °C), ¥10 °F (¥23 °C), ¥25 being found unacceptable compared retail food refrigeration addressed today, °F (¥32 °C), and ¥40 °F (¥40 °C). By with other available alternatives. A EPA is providing one year to ensure that referring to this table EPA believes the technical support document that any retrofits that are already underway dividing line between ‘‘small’’ and provides the additional Federal Register will have sufficient time to be ‘‘large’’ condensing units also considers citations concerning data on the SNAP completed. Therefore, we are the product application (e.g., ‘‘low’’ or criteria (e.g., ODP, GWP, VOC, toxicity, establishing a change of status date of ‘‘medium’’ temperature), as suggested flammability) for these alternatives may July 20, 2016. by Nor-Lake and analyzed by be found in the docket to this (c) How is EPA responding to comments Hillphoenix, and as discussed above. rulemaking (EPA, 2015d). In summary, on retail food refrigeration (stand-alone the other available alternatives have equipment)? (b) Retrofit Stand-Alone Equipment zero ODP as do those that we are finding Comment: One commenter, For retrofit stand-alone equipment, unacceptable. However, the refrigerants remaining acceptable have GWPs Honeywell, addressed the status change EPA proposed to change the listing for date for retrofits and supported the R–404A and R–507A from acceptable to ranging from below 100 to 3,607, lower than the GWPs of the two blends we are proposed date of January 2016. unacceptable as of January 1, 2016. In Commenters suggested a wide-range today’s final rule, we are establishing finding unacceptable, which have GWPs of 3,922 and 3,985. All of the of dates for the status change for new the change of status date of July 20, equipment. NRDC and IGSD urged EPA 2016. refrigerants remaining acceptable have toxicity lower than or comparable to the to maintain the proposed status change This action does not apply to refrigerants whose listing status is date of January 1, 2016 for new stand- servicing existing equipment designed changing from acceptable to alone units. These commenters pointed for those two refrigerants or servicing unacceptable. The other available out that coolers using transcritical R– equipment that was retrofitted to use refrigerants, as well as those we are 744 have already been developed. those refrigerants before the January 1, finding unacceptable, are not Unified Brands stated ‘‘it will be 2016, status change date. For instance, flammable. None of the alternatives is impossible to convert all our equipment equipment designed for use with or considered a VOC; however, some of the from R134a and R404A to R290 by retrofitted to R–404A prior to July 20, 2016.’’ 2016, would be allowed to continue to 79 HCFC–22 and several blends containing HCFCs A number of commenters supported a operate using and could be serviced are also listed as acceptable but their use is severely change of status a year or two later than with R–404A. restricted by the phasedown in HCFC production. that proposed. Two refrigerant

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producers, Honeywell and DuPont which the most significant amount of As pointed out by Honeywell and suggested a change of status date of design changes would be necessary and DuPont, some of the HFC/HFO blend 2017 for new equipment to allow fuller did not appear to consider the range of alternatives, such as R–448A, R–449A, development of HFC/HFO blends that available refrigerants, many of which R–450A and R–513A, can be used with require minimal design changes and could be used with less significant little adjustment to existing designs, offer similar or better performance than changes to designs. Manufacturers will show energy efficiencies equal to or current refrigerants. Shecco indicated likely select different refrigerants for better than current refrigerants. While that a date of January 1, 2018, was different products. Those manufacturers there is not currently sufficient supply needed for ‘‘smaller’’ manufacturers to that are not interested in designing of these refrigerants, Honeywell and meet the requirements. Supermarket equipment that uses hydrocarbon DuPont have indicated that production Company ABC also supported a 2018 refrigerants, given some of their stated facilities for the components are on-line change of status date for new stand- concerns with overcoming challenges (see V.C.2.a.1 above) and that the blends alone equipment. H&K International with safety and VOC issues, could select will be made available after listed indicated R–290 is very energy efficient a nonflammable fluorinated refrigerant acceptable with SNAP. As noted and that 2018 would provide enough such as an HFC/HFO blend designed to previously, Honeywell has stated that time to transition. Another mimic many of the characteristics of the R–450A supplies will be ‘‘available manufacturer, Hatco, also believed a refrigerants they are using today. EPA soon’’ and multiple component ‘‘January 1, 2018 implementation date believes such HFC/HFO blends will manufacturers are developing would provide the needed time to do become available by the status change equipment that uses these alternatives. the necessary testing and certification dates established in this rule and note Hillphoenix’s refrigerant change for a safe and effective conversion.’’ that R–448A, R–449A, R–450A and R– schedule indicates that ‘‘Lab/User Other commenters supported a much 513A are listed as acceptable in this Testing’’ and ‘‘Test & Verification’’ is later change of status date for new end-use category, with the latter two already underway with such blends. equipment. Approximately 30 being acceptable in stand-alone These blends offer equipment manufacturers, two industry medium-temperature equipment and all manufacturers additional energy associations representing equipment efficient options to rapidly transition four being acceptable in stand-alone manufacturers (AHRI and NAFEM), an out of refrigerants listed as unacceptable low-temperature equipment. association representing supermarkets while also avoiding some of the Furthermore, EPA points to the fact that (FMI), and a beverage supplier (Coca- concerns (e.g., flammability, charge size new HFC/HFO blends have been listed Cola) suggested dates ranging from 2020 limits, operation in hot temperatures) as acceptable and that such blends to 2025. True Manufacturing, indicated manufacturers indicated exist with perform similarly to traditional they have been shipping products using other alternatives such as R–290 and R– refrigerants and have proved to be as hydrocarbons and R–744 for several 744. years. Hillphoenix provided a efficient or even offer an efficiency Several commenters pointed out that refrigerant change schedule that advantage. As discussed above, the at least some part of their product line discussed the development of R–744, supply of these refrigerants is increasing can be converted to R–290 and some hydrocarbons and HFO blends; this and the components to use them are in manufacturers are already offering schedule suggested various dates for development. EPA believes that by products to the market using these different tasks for these three refrigerant finalizing a status change date for new options. For instance, Hillphoenix’s types. Based on the timeframes stand-alone equipment several years refrigerant change schedule indicates associated with these tasks, they later than proposed, manufacturers will that the step of ‘‘Convert Products’’ for suggested a change of status date of have the ability to choose such HFC/ ‘‘Hydrocarbons (on applicable systems)’’ January 1, 2022, for stand-alone HFO blends for their equipment, as well can begin in 2015 and continue after equipment. Lennox believed the NPRM as the other alternatives, including R– that until 2020. They did not provide a ‘‘generally contemplates a wholesale 290, R–441A, R–600a and R–744, which full explanation of why the process switch to hydrocarbon refrigerants’’ in have already been listed as acceptable or would continue until 2020; however, stand-alone equipment. NAFEM acceptable, subject to use conditions. EPA sees from commenters that there indicated it would ‘‘take ten to twelve There is ample supply of R–290 and R– will be time necessary to develop years for manufacturers to convert their 744; however, the technical difficulties products and have them undergo the product lines to use isobutene or discussed with R–290 (particularly in testing and certification necessary to sell propane.’’ ‘‘large’’ units) and R–744 suggest that such products. EPA believes that by our Response: As provided above in our not all manufacturers will be able to status change dates of 2019 and 2020, discussion of the status change dates we convert their products and undergo the and not before, manufacturers will be are finalizing, we agree with the testing and certification necessary able to complete the development of commenters who suggest a few before that equipment can be sold. products using R–290 or other additional years are needed for the Because the HFC/HFO blends are hydrocarbons. EPA also believes that status change. However, we do not agree designed to mimic the performance of testing and certification resources are that commenters advocating a lengthy the refrigerants they replace, the available to meet this deadline, and that delay in the change of status provided adoption of those is expected to take more can be created if there is a demand support for such a delay. As an initial less time; however, there is only limited for them. matter, to the extent that these supply of those refrigerants now. Given As many commenters pointed out, commenters identified concerns with the limited current supply, the initiation compliance with new DOE energy alternatives, their concerns were of the product conversion, testing and conservation standards for certain focused on one refrigerant or class of certification would not start until commercial refrigeration equipment is refrigerants and the commenters did not approximately 2016–2017, and hence required on March 27, 2017 and for consider the full range of available or manufacturers would not be able to stand-alone walk-in coolers and freezers potentially available refrigerants. provide products using these is required on June 5, 2017 (see also Specifically, those comments appeared alternatives until approximately 2019– sections V.C.1.b and V.C.7). EPA is to have focused on alternatives for 2020. establishing change of status dates of

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January 1, 2019, or January 1, 2020, for products already meeting those DOE can be adopted into manufacturers’ stand-alone units. This allows standards but utilizing refrigerants that products with minor changes while still additional time after compliance is we are listing as unacceptable may be meeting the DOE requirements, once required with the DOE standards for redesigned after the DOE deadline to supplies of those refrigerants are made manufacturers to potentially redesign ensure compliance with both EPA and available to the manufacturers. any products that require additional DOE requirements. Given that some engineering to meet both this rule and HFC/HFO blends, such as R–450A and 5. What is EPA finalizing for vending the DOE standards. With 2019 and 2020 R–513A, were designed to mimic HFC– machines? change of status dates, manufacturers 134a in medium-temperature The change of status determination have the opportunity to integrate low- refrigeration, and others, such as R– GWP refrigerants in their models now as 448A and R–449A, were designed to for vending machines is summarized in they prepare for the DOE requirements mimic R–404A in low-temperature the following table: for some or all of their products. Other refrigeration, EPA believes that these

TABLE 7—CHANGE OF STATUS DECISIONS FOR VENDING MACHINES

End-use Substitutes Decision

Vending machines (new only) .. FOR12A, FOR12B, HFC–134a, KDD6, R–125/290/134a/600a Unacceptable as of January 1, 2019. (55.0/1.0/42.5/1.5), R–404A, R–407C, R–410A, R–410B, R–417A, R–421A, R–422B, R–422C, R–422D, R–426A, R– 437A, R–438A, R–507A, RS–24 (2002 formulation), SP34E. Vending machines (retrofit only) R–404A, R–507A ...... Unacceptable as of July 20, 2016.

(a) New Vending Machines 441A and R–600a, as acceptable, subject ecosystem impacts. In comparison, the EPA proposed to change the listing for to use conditions (April 10, 2015, 80 FR refrigerants we are finding unacceptable HFC–134a and 20 other refrigerants for 19453). In addition, concurrently with are similar in ODP (zero ODP), toxicity new vending machines from acceptable this rule, EPA is listing R–450A and R– (low toxicity), and VOC (non-VOC or to unacceptable as of January 1, 2016. In 513A acceptable in new vending not expected to contribute significantly machines. A technical support today’s final rule, EPA is changing the to ground level ozone formation). When document that provides the additional listing for HFC–134a and 19 other the three hydrocarbon substitutes are Federal Register citations concerning refrigerants for new vending machines used in accordance with the use data on the SNAP criteria (e.g., ODP, from acceptable to unacceptable as of conditions, their flammability risks are GWP, VOC, toxicity, flammability) for January 1, 2019. While EPA proposed to not significantly greater than those of these alternatives may be found in the change the status from acceptable to the unacceptable alternatives. Because docket for this rulemaking (EPA, unacceptable for IKON B, EPA is not the risks other than GWP are not 2015d). In summary, the other available changing the status for this refrigerant in significantly different for the other refrigerants for new vending machines this final rule for the reasons provided available alternatives than those we are have zero ODP and GWPs ranging from below. listing as unacceptable and because the 1 to about 630. In contrast, those we are GWP for the refrigerants we are listing The 19 other refrigerants in addition finding unacceptable have GWPs to HFC–134a are: FOR12A, FOR12B, as unacceptable is significantly higher ranging from approximately 1,100 to and thus poses significantly greater risk, KDD6, R–125/290/134a/600a (55.0/1.0/ 3,985. IKON B, which we proposed but 42.5/1.5), R–404A, R–407C, R–410A, R– we are listing the following refrigerants are not finalizing to be unacceptable, as unacceptable for new vending 410B, R–417A, R–421A, R–422B, R– has a GWP around 600. R–290, R–600a, 422C, R–422D, R–426A, R–437A, R– machines: HFC–134a, FOR12A, and R–441A are or are composed FOR12B, KDD6, R–125/290/134a/600a 438A, R–507A, RS–24 (2002 primarily of VOCs. We have exempted formulation), and SP34E. (55.0/1.0/42.5/1.5), R–404A, R–407C, R– R–290, R–600a and R–441A used in 410A, R–410B, R–417A, R–421A, R– (1) What other alternatives does EPA vending machines from the venting 422B, R–422C, R–422D, R–426A, R– find pose lower overall risk to human prohibition (80 FR 19453). EPA’s 437A, R–438A, R–507A, RS–24 (2002 health and the environment? analysis indicates that their use as formulation), and SP34E. refrigerants in this end-use are not A number of other refrigerants are expected to contribute significantly to (2) When will the status change? acceptable or acceptable subject to use ground level ozone formation (ICF, conditions for new vending machines: EPA is establishing a change of status 2014e). These three substitutes are also IKON A, IKON B, R–290, R–441A, R– date for the specified HFC refrigerants flammable; however, the use conditions 450A, R–513A, R–600a, R–744, and in new vending machines of January 1, specified ensure that they do not pose THR-02.80 2019. greater overall risk than any of the In the NPRM, EPA provided For new vending machines, there are substitutes currently listed as acceptable information on the risk to human health several alternatives that can meet the in new vending machines.81 None of the and the environment presented by the technological needs of the market. EIA refrigerants currently listed as alternatives that are being found states that ‘‘R–744, R–290, R–441A, and acceptable present significant human unacceptable and those that remain isobutene (‘R–600a’) can satisfy the vast health toxicity concerns or other acceptable. Subsequent to the issuance majority of the current market for of the proposal, EPA listed R–290, R– refrigerants in . . . vending machines.’’ 81 The risks due to the flammability of these We are aware of products using R–290 refrigerants in this end-use were analyzed in the 80 HCFC–22 and some blends containing HCFCs SNAP rule finding them acceptable, subject to use and R–744 that are already in use. are also listed as acceptable but their use is severely conditions (April 10, 2015; 80 FR 19453). Refer to According to Shecco, based on its restricted by the phasedown in HCFC production. Docket ID No. EPA–HQ–OAR–2013–0748. October 2014 survey, the manufacturers

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of vending machines they surveyed ‘‘are information indicated that various types an additional six months to test and already today able to produce sufficient of R–744 vending machines are already certify once developed. As discussed amount of such equipment [R–290 and available or are expected to be available above, any required modifications to the R–744] to cover the needs of the entire by January 1, 2016. Pepsi has test- factory line and facilities would occur market. All of the interviewed marketed R–744 vending machines in concurrently if a manufacturer chose to manufacturers confirmed that they plan the United States as early as 2009.82 The use R–290 or another acceptable to covert [sic] their whole Automated Merchandising Systems hydrocarbon refrigerant. Hence, EPA manufacturing facilities to hydrocarbons (AMS) however stated that R–744 was believes that new vending machines and/or CO2 by 2018/2019 latest.’’ While unlikely as a viable substitute for its could be available and in compliance the alternatives that remain acceptable equipment, especially for the perishable with a status change date of January 1, will be able to meet the technical food vending machines it offers. 2019. constraints for this equipment, time will Although EPA did not see the technical Comments also support that other be needed for the transition to occur. On detail to allow us to conclude that R– options besides R–744 and the aspect of timing, Shecco supported 744 would not be a viable choice for hydrocarbons may be explored for those a status change date of January 1, 2018, such equipment, we agree that products that have not yet transitioned. although their survey suggested some additional time beyond our proposed Concurrently with this rule, EPA is manufacturers might not convert until status change date is needed to explore listing two HFC/HFO blends, R–450A 2019. Shecco indicated that the supply that and other acceptable substitutes for and R–513A, as acceptable for new of HFC-free vending machines has been this equipment. The comments support vending machines. Although increasing over the last two years. Other that equipment can be designed, tested commenters did not indicate a current commenters suggested that four to five and certified using R–744 by January 1, supply of components for these years would be required, mentioning in 2019. refrigerants, information indicates that particular the supply of components as Comments also supported that some component suppliers are committing a major obstacle in achieving the components and equipment using additional resources to develop them. proposed January 1, 2016, status change hydrocarbons are available. AMS stated EPA believes their adoption can happen date. While we agree that manufacturers that one hurdle for using R–290 is quickly as they are both nonflammable will be able to produce equipment using finding 120-volt, 60-hertz components blends and are designed to mimic the lower-GWP refrigerants addressing a for the U.S. and Canadian markets. AMS performance of HFC–134a, the only large portion of the market in the period also echoed the concern of Coca-Cola refrigerant indicated by a manufacturer of 2016–2017, we also agree that there that more time is needed for testing and as used in its vending machines. As are some technical challenges that certifying new models of vending noted earlier, Honeywell, the producer support a change of status date of 2019 machines. EPA agrees time beyond the of R–450A, indicated that it will be for this end-use. originally proposed January 1, 2016, supplying that refrigerant soon. We Commenters indicated several status change date is necessary for expect that the refrigerant producers necessary steps that will need to occur, further development of R–290 will be able to fully supply these blends including development and testing of components and for necessary testing in a year or two. EPA expects that components, such as compressors, for and certification of R–290 vending components designed for the vending the full range of vending machines. In machines. Information in the comments machine market using one or both of addition, engineering, development, and indicate that some R–290 components these blends could be developed within testing to meet standards, such as those are available from multiple suppliers the next year to eighteen months as from DOE, of the products would start and we believe that these components more refrigerant supplies become as components became available. could be employed in vending available. As components become Modifications to the factory could be machines. available, additional design and testing required, ranging from a simpler change In summary, to use hydrocarbons in vending machines could begin. of the refrigerant storage area to refrigerants, comments support that Because the comments indicated only reconfiguration of the factory to address approximately three and a half years are one refrigerant to be replaced, and concerns such as ventilation or other needed for equipment to become fully because the HFC/HFO blends are safety measures. Information submitted available. This includes six months to designed to mimic that refrigerant, by the commenters supported that for test and design products using the equipment development time for the portion of the vending machines available R–290 components and an vending machines is expected to be that have not already transitioned to a additional year to two years for shorter than other end-uses, perhaps lower-GWP refrigerant, these actions development of other components and adding only six months. Limited factory could take a few months or up to a equipment designs. Equipment modifications, if any, could happen couple of years. However, it is likely development and testing would occur in concurrently with the design work. As that these actions could occur series, with the final units being with other refrigerants, EPA would simultaneous with other steps such as developed and ready for testing expect equipment testing and equipment design and testing. approximately six months after the certification to be rolled out as One manufacturer identified two components for that unit were available. equipment models are redesigned, with refrigerant types: R–744 and Testing and certification would likewise the last units being available hydrocarbons. Refrigerant producers occur as products were developed and approximately six months after designs also pointed towards HFC/HFO blends would span up to three years, much of are developed. as a third group. For R–744, we do not which while other actions are occurring. In summary, we find that HFC/HFO see any question regarding refrigerant We estimate the final units might take blends could be implemented to meet supply. Information submitted by the the January 1, 2019, status change date commenters support that some 82 PepsiCo, 2009. ‘‘PepsiCo Brings First Climate- for new vending machines. components are already available. Coca- Friendly Vending Machines to the U.S.,’’ March 30, 2009, this document is accessible at (b) Retrofit Vending Machines Cola indicated time was needed for www.pepsico.com/live/pressrelease/pepsico-brings- testing and certifying new models of first-climate-friendly-vending-machines-to-the- For retrofit vending machines, EPA vending machines; however, additional us03302009. proposed to change the listing for R–

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404A and R–507A from acceptable to these alternatives may be found in the change of status date of 2017 for new unacceptable as of January 1, 2016. In docket for this rulemaking (EPA, vending machines to allow fuller today’s final rule, we are finalizing a 2015d). In summary, other alternatives development of additional alternatives change of status of July 20, 2016 similar have zero ODP and have GWPs ranging that would require minimal design to the retail food end-uses considered in from below 100 to 3,085, lower than the changes and offer similar or better this final action. EPA does not believe GWPs of the two blends we are finding performance than current refrigerants. retrofits are nearly as common in unacceptable, which have GWPs of Shecco felt that while the large vending machines as for some of the 3,922 and 3,985. All of the refrigerants manufacturers could meet the proposed retail food refrigeration uses, remaining acceptable have toxicity date, a date of January 1, 2018, would particularly supermarket systems. lower than or comparable to the allow for smaller manufacturers to meet However, similar to the retail food refrigerants whose listing status is the requirements. The Coca-Cola refrigeration addressed today, EPA is changing from acceptable to Company claimed the change of status providing one year to ensure that any unacceptable. None of the refrigerants date for new vending machines should retrofits that are already underway, will that remain acceptable or those that are be no earlier than January 1, 2020, to have sufficient time to be completed. being listed as unacceptable is allow time for the development of This action does not apply to flammable. None of the alternatives is additional compressor models of its servicing existing equipment designed considered a VOC; however, some of the preferred alternative to cover a full for those two refrigerants or servicing refrigerant blends that remain range of required capacities. AMS, a equipment that was retrofitted to use acceptable include small amounts (up to vending machine manufacturer, believes those refrigerants before the January 1, 3.4% by mass) of VOCs such as R–600 that one option that is being pursued on 2016, status change date. For instance, (butane) and R–600a (isobutane). the beverage side, R–744, is not a viable vending machines designed for use with However, these amounts are small, and solution for perishable food vending or retrofitted to use R–404A or R507A EPA’s analysis of hydrocarbon equipment. This manufacturer prior to July 20, 2016, would be allowed refrigerants show even when used neat recommends a January 1, 2020, change to continue to operate using and could they are not expected to contribute of status date to allow for development be serviced with that refrigerant. significantly to ground level ozone of additional alternatives. The National formation (ICF, 2014e). Because the Automatic Merchandising Association (1) What other alternatives does EPA risks other than GWP are not (NAMA) indicated that the conversion find pose lower overall risk to human significantly different for the other timeline is likely to be four or five years, health and the environment? available alternatives than those we are although some of its members estimate A number of refrigerants are listing as unacceptable and because the the timeline to be as much as eight acceptable for retrofitting vending GWP for the refrigerants we are listing years, based on the experience of the machines: FOR12A, FOR12B, HFC– as unacceptable is significantly higher mid-1990s when companies phased out 134a, IKON A, IKON B, KDD6, R–125/ and thus poses significantly greater risk, the use of CFC–12. 290/134a/600a (55.0/1.0/42.5/1.5), R– we are listing the following refrigerants Response: We acknowledge the 407C, R–417A, R–417C, R–421A, R– as unacceptable for retrofit vending comment supporting the proposed date 422B, R–422C, R–422D, R–426A, R– machines: R–404A and R–507A. of January 1, 2016 for retrofit vending machines and note that we are finalizing 437A, R–438A, R–448A, R–449A, R– (2) When will the status change? 450A, R–513A, RS-24 (2002 that change of status date as proposed. formulation), SP34E, and THR-02.83 Commenters did not indicate any We do not agree with NAMA that the We do not believe retrofits are technical challenges in retrofitting switch away from CFC–12 in the mid- common in vending machines. Many of vending machines with the refrigerants 1990s supports a four, five or even eight the refrigerants remaining acceptable are that remain acceptable. In fact, EIA felt year period. The phaseout of CFC–12 blends with small amounts of ‘‘The poor energy efficiency consumption was January 1, 1996, less hydrocarbons. The hydrocarbon content performance of R–404A is another than two years after the initial SNAP allows the possibility of retrofitting compelling reason to delist this listings were issued. Regardless, each equipment from an ODS (which would refrigerant and replace it with R–134a transition is unique and the timing for have used alkylbenzene or a mineral oil) for retrofits, which by comparison, has transitions can vary end-use by end-use without changing the lubricant, whereas shown a 10 percent efficiency gain.’’ As and even for the same end-uses usually a polyolester is required when discussed above, however, commenters depending on a number of factors, such retrofitting to an HFC or HFC blend. indicated that plans may be underway as whether alternatives that perform Thus we believe these refrigerants and that adequate time should be given similarly to the current refrigerant can would prove successful in retrofits of to allow for those plans to be be used or whether significant design vending machines, should such a implemented or changed. Therefore, we changes may need to occur. Regarding this current action for retrofit be desired by the owner. are establishing a change of status date In the preamble to the NPRM, EPA of July 20, 2016. vending machines, the transition away provided information on the risk to from the substitutes we are listing as (c) How is EPA responding to comments unacceptable is already underway based human health and the environment on vending machines? presented by the alternatives that are on public commitments made by some Comment: Honeywell supported the of the largest purchasers of vending being found unacceptable and those that proposed date for retrofit vending machines. Shecco conducted a survey of remain acceptable. A technical support machines. Regarding new vending vending machine manufacturers in document that provides the additional machines, NRDC and IGSD believed the October 2014 and found that all were Federal Register citations concerning proposed status change date of January planning to convert to hydrocarbons data on the SNAP criteria (e.g., ODP, 1, 2016, was feasible and stated that the and/or R–744 in the 2018/2019 GWP, VOC, toxicity, flammability) for Consumer Goods Forum has pledged to timeframe at the latest. Many companies 83 HCFC–22 and several blends containing HCFCs transition completely out of HFC have already made significant progress. are also listed as available but their use is severely equipment by the end of 2015. For example, the Coca-Cola Company restricted by the phasedown in HCFC production. Honeywell and DuPont, suggested a has placed over 1.4 million HFC-free

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units globally and EIA indicates that indicated that by January 1, 2017, there and we do not have information ‘‘Pepsi is approaching 1 million will be multiple low-GWP alternatives supporting use of these lower-GWP hydrocarbon vending machines which commercially available. Another refrigerants. However, as we see from use 20 percent less energy than Energy refrigerant producer, Honeywell, the current action, the refrigeration Star requirements.’’ There has been recommended a GWP limit for new industry has made great progress in the success developing and deploying supermarket systems and remote last five to ten years in moving toward vending machines with R–744, condensing units of 1,500 and a GWP lower-GWP alternatives and we see that including the manufacture of limit of 2,000 for retrofitted equipment, momentum continuing. Therefore, it is components for those machines. EIA based on the IPCC’s Fifth Assessment possible that at some future date, we enumerated four manufacturers offering Report (AR5). For new stand-alone could determine to list additional hydrocarbon compressors and equipment and vending machines, alternatives as unacceptable based on a components for light commercial uses, Honeywell recommended a GWP limit determination that there are lower-GWP including vending machines. Although of 600 (using AR5 GWPs) for HFC–134a alternatives available that, based on Coca-Cola requested a 2020 change of replacements and 1,500 for R–404A consideration of the SNAP review status date, other information listing replacements. CARB suggested adding criteria, pose lower overall risk. an additional restriction for all commercialization plans for low-GWP (b) Comments and Responses commercial refrigeration to find stand-alone equipment and vending Concerning Small Businesses machines indicated that by January 1, unacceptable all HFCs with a GWP 2016, all of the vending machines in greater than 1,500 starting in 2018 and Comment: Commercial Food that list were expected to be available all those with a GWP greater than 150 Equipment Service Association with low-GWP refrigerants. However, in 2023. Unison Comfort Technologies (CFESA), an organization representing other commenters indicated that more implored us to ‘‘seriously consider service companies and technicians, components need to be developed for banning all refrigerants with GWP>10.’’ suggested a timeline ‘‘ideally extended different types of vending machines to Response: EPA’s proposal was limited to 10 years for small businesses’’ and support a complete transition. AMS to determinations for the specific ‘‘no less than 5 years’’ for large stated that more components for R–290 refrigerants proposed which pose companies. Shecco believed that many suitable for the U.S. and Canadian significantly greater risk than other of the smaller manufacturers lag behind power supply (e.g., 60 Hz) were needed. available refrigerants, and we cannot the larger companies in the switch away from HFC–134a in stand-alone We agree that the choice of components take final action changing the status of equipment and vending machines. They to-date has been limited but we see that additional refrigerants without first suggested a January 1, 2018, change of it is growing and expect it to continue providing notice and an opportunity for status date would provide sufficient to grow, especially considering that two comment. EPA may consider whether to time for these smaller companies, large U.S. purchasers of vending include additional refrigerants in a ‘‘enabling them to remain in the machines have committed to move to future proposed status change rule in marketplace and ensuring healthy non-HFC technologies. R–744, R–290 which EPA would provide the necessary analysis of the SNAP criteria and an competition in this area.’’ and R–600a components used in other Response: EPA does not agree that a products, like stand-alone retail food opportunity for public comment. Regarding the suggestion that we different change of status date should refrigeration equipment, may also be establish a specific numerical limit for apply to large companies as compared adaptable for vending machines. GWP, as noted in Section IV.B, the to small companies. The available Thus, although significant progress structure of the SNAP program, which alternatives that pose lower risk than has been made, in particular with the is based on a comparative framework of those subject to the status change are use of R–744 in vending machines that available substitutes at the time a equally available to businesses of all dispense canned beverages, it is decision is being made, does not sizes. Under SNAP, EPA has not used necessary to provide some additional support the use of such limits. We note the ‘‘size’’ of the user as a basis for its time beyond the proposed date of that in making our decision for new and listing decisions and the commenter January 1, 2016 to allow further retrofit supermarket systems and remote provides no basis related to the scope development of components for condensing units, EPA pointed to the and purpose of the SNAP program to do different types of vending machines and multi-year history of the successful use so in this instance. EPA’s decision also to allow further development of of some blends that remain acceptable regarding the status change dates for components using other alternative to support the ‘‘availability’’ of new retail food refrigeration equipment refrigerants. alternatives that pose less risk than and new vending machines was based 6. General Comments on the Retail Food those we are listing as unacceptable. on the technical challenges faced by Refrigeration and Vending Machine Many of these blends have GWPs higher businesses of all sizes in adopting new End-Uses than the limits recommended by the refrigerants successfully in these commenters. Thus, at this time, we do products. (a) Specific Numerical Limits for GWP not believe an analysis of refrigerants Comment: Some commenters Comment: Unisom Comfort below those limits recommended by the indicated that they believe additional Technologies requested that EPA commenters with those above the limit time is needed for smaller companies, consider banning all refrigerants with and which remain acceptable would especially businesses in the stand- GWP greater than 10, as there are very support a conclusion that the lower- alone/self-contained retail food many existing alternatives. DuPont GWP refrigerants are available for use, refrigeration end-use that manufacture recommended that EPA change the as many have not been demonstrated to custom-built equipment and produce status to unacceptable for all be technically feasible for products and hundreds of models. The commenters alternatives which generally have GWPs systems in these specific end-use also indicated particular challenges and above 1,500, such as the R–407 series categories. As noted previously, there disadvantages for small businesses as refrigerants. They suggested this limit are a number of technical challenges compared to larger businesses. ‘‘for new and retrofit refrigeration and that must be addressed in selecting a Response: We note that transition vending applications.’’ DuPont refrigerant for use in a specific system timelines in the NPRM were based on

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the Agency’s information concerning reason to believe that this number is efficiency of equipment using the availability of alternatives for much higher.’’ Coke noted that it has refrigerants whose status will change to businesses of all sizes and we did not developed and trained a servicing unacceptable. provide separate change of status dates network as it introduced R–744 We note that we do not have a for different size businesses. We address equipment. Included in the docket to practice in the SNAP program of these concerns further in the previous this rule is Hydrocarbon Refrigerants— including energy efficiency in the comment and response. A Study Guide for Service Technicians, overall risk analysis. We do, however, published by the Refrigeration Service consider issues such as technical needs (c) Suggestion Regarding Education and Engineers Society (RSES), that could be for energy efficiency (e.g., to meet DOE Training used for those wishing to service new standards) in determining whether Comment: CFESA points to the need stand-alone units and new vending alternatives are ‘‘available.’’ EPA for ‘‘proper education and safety machines using R–290, R–441A or R– recognizes that the energy efficiency of training for a successful and safe 600a. particular models of equipment is a transition away from current refrigerants The HFC/HFO blend alternatives, significant factor when choosing to the flammable or scarce refrigerants identified above, are nonflammable and equipment. We also recognize that the EPA deems acceptable.’’ Other operate at similar characteristics to energy efficiency of any given piece of commenters likewise stated training of those subject to the status change and equipment is in part affected by the factory employees and service therefore technicians should require choice of refrigerant and the particular technicians would be required, only minimal extra training to use them. thermodynamic and thermophysical especially if hydrocarbon refrigerants Because different change of status dates properties that refrigerant possesses. were employed. apply for the different refrigeration end- Although we cannot know what energy Response: Because CFESA and others uses technicians will have an efficiency will be achieved in future reference flammable refrigerants, EPA opportunity to stagger training relevant products using a specific acceptable believes this comment is particular to for the different end-uses and they can refrigerant, we can point to both actual stand-alone equipment and vending build their skills across those end-uses equipment and testing results that show machines, where certain flammable over time. promise and often better results than the refrigerants are currently acceptable equipment using the refrigerants that we subject to use conditions. However, for 7. Energy Efficiency Considerations are finding unacceptable. (EPA–HQ– these two end-uses, not all refrigerants DOE has promulgated, in separate OAR–2014–0198–0134, EPA–HQ–OAR– listed as acceptable are flammable. rulemakings and under separate 2014–0198–0184, EPA–HQ–OAR–2014– Acceptable alternatives for stand-alone authority, energy conservation 0198–0077). We recognize that, while equipment and vending machines, such standards for several types of theoretical efficiency of any given as R–448A, R–449A, R–450A and R– equipment, including products that are Rankine cycle is not dependent on the 513A, are nonflammable and operate at affected by this rule. See section V.C.1.b refrigerant used, the refrigerant, the similar characteristics to R–404A and for information regarding DOE energy design of the equipment, and other HFC–134a. CFESA does not specify conservation standards that are factors will affect the actual energy which refrigerants it considers scarce. applicable to the equipment addressed efficiency achieved. Nonflammable R–744 refrigerant, for in this rule. New equipment subject to The efficiency can change based on example, is in ample supply. While this rule would need to meet the DOE the refrigerant chosen and there are some other refrigerants have not been requirements and the requirements of various metrics, such as Total produced in large quantities to date, the status change by the dates Equivalent Warming Impact (TEWI) and production is increasing as demand established in these rules.85 We note Life Cycle Climate Performance (LCCP), increases, including R–448A, R–449A, that for each of these end-uses, there are that account for climate effects of both R–450A and R–513A. Honeywell many compliant models already emissions of the refrigerant and the indicates that R–450A is soon to be commercially available that do not use possible emissions of greenhouse gases, produced in commercial quantities, and the refrigerants subject to a change of primarily carbon dioxide, from the EPA expects it, along with other HFC/ status. Furthermore, for all the source of power to operate equipment. HFO blends, will be available by the equipment subject to today’s rule, there Quantification of the portions of TEWI/ change of status dates of 2019 and 2020 are examples, highlighted below, that LCCP from the refrigerant and energy for vending machines and stand-alone show the energy efficiency using use can only be done using broad equipment. With respect to technician alternative refrigerants not subject to a assumptions that would not be training, EPA agrees proper education change in status can be at least as good applicable to all users of the myriad and training is valuable, and we note as, and often better than, the energy equipment models that are affected by that there are already many today’s rule. As noted in section manufacturers and suppliers who have 85 Refrigeration equipment in the applicable V.C.1.b, energy conservation standards been conducting such training. For covered equipment class would still be subject to set by the DOE apply to some of the example, Shecco notes that ‘‘The GUIDE DOE’s standards, regardless of the refrigerant that equipment covered by today’s rule (e.g., the equipment uses. If a manufacturer believes that stand-alone equipment, vending North America 2013 84 report has its design is subjected to undue hardship by a identified at least 165 [Heating, regulatory standard prescribed by DOE (in contrast machines). If manufacturers were to Ventilation, Air Conditioning, and to one that is statutorily prescribed by Congress), offer equipment that meets, but does not the manufacturer may petition DOE’s Office of exceed, that standard (or any other Refrigeration] HVAC&R System & Hearing and Appeals (OHA) for exception relief or ® Component Manufacturers, and standard, such as ENERGY STAR ), exemption from the standard pursuant to OHA’s then the indirect emissions from energy Engineering Contractors in the United authority under section 504 of the DOE States working with natural refrigerants Organization Act (42 U.S.C. 7194), as implemented use would be the same regardless of already today. In reality we have a at subpart B of 10 CFR part 1003. OHA has the which refrigerant were used. In that authority to grant regulatory relief from a standard case, the refrigerant emissions would be promulgated by DOE on a case-by-case basis if it 84 Shecco, 2013a: GUIDE 2013: Natural determines that a manufacturer has demonstrated the only factor that would decide which Refrigerants—Market Growth for North America, that meeting the standard would cause hardship, system has a lower TEWI or LCCP. publication.shecco.com/publications/view/6 inequity, or unfair distribution of burdens. Manufacturers that wish to exceed

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energy efficiency requirements may do results. For instance, in supermarket over 40% since 2000, at which time so with any acceptable refrigerant they refrigeration, a theoretical analysis such equipment was exclusively using choose. Although some refrigerants will (Emerson Climate Technologies, 2014) HFC–134a (Coca-Cola, 2014). More in the future be listed as unacceptable examined the energy use of R–407A and recently, it was reported that 78% of as determined in this final action, that R–410A, both of which are on the list Coca Cola’s models (vending machines does not directly affect the theoretical of acceptable substitutes, against that of and stand-alone cases) perform more energy efficiency possible. As noted R–404A, which is listed as unacceptable efficiently than HFC units. below, the results to date for actual in new supermarket systems as of (Refrigeration and Air Conditioning equipment using acceptable alternatives January 1, 2017. Although this analysis Magazine, 2015). Furthermore, it has do not show any significant decline in found that both blends would see a been reported that PepsiCo has placed energy efficiency and often show the 3.6% to 6.7% drop in efficiency in the nearly one million hydrocarbon vending reverse. (EPA–HQ–OAR–2014–0198– low-temperature part of the store (e.g., machines on the market and that these 0134, EPA–HQ–OAR–2014–0198–0184, frozen food, ice cream), they would use 20% less energy than ENERGY EPA–HQ–OAR–2014–0198–0077). achieve a 4.3% to 13.3% increase in the STAR requirements. While various sources of data on energy medium-temperature part of the store As new products are designed to use efficiency results from testing (e.g., meat, dairy products, chilled particular refrigerants, manufacturers acceptable refrigerants show varying prepared food). Given that supermarkets have the opportunity to change designs results, we believe that with new have significantly larger use of medium- to take advantage of a given refrigerant’s designs to use these refrigerants, any temperature equipment, the net effect characteristics. The redesign and lower energy efficiency results can be would be for the equipment using those development phase is also an overcome and likewise existing energy alternatives to use less energy than opportunity to improve other efficiency levels can be improved. equipment currently designed to use R– components that will affect the overall Throughout the history of the SNAP 404A. We have pointed out in Section efficiency of the equipment, such as the program, EPA has seen the energy V.C.2 above that R–407A in particular is use of more efficient motors and efficiency of refrigeration and air- widely used and we might expect it to compressors, improved heat exchangers, conditioning equipment increase, be used in a large share of supermarkets better controls, improved insulation despite changing refrigerant options. In after the change of status date. This (e.g., on display cases) and sealing (for some cases, this was because new analysis showed similar increases in products with doors), more efficient chemicals were developed that energy efficiency of new supermarket lighting, etc. These opportunities and possessed unique properties that and stand-alone equipment using a the examples provided are indicative allowed high energy efficiency levels to variety of low-GWP refrigerants as that when redesigning equipment for a be obtained. In many cases, compared with equipment currently new refrigerant, energy efficiency is technological improvement and using R–404A. often improved. Multiple companies optimization of equipment designs and The analysis also showed a slightly have reported such gains in the controls has increased energy efficiency. higher energy consumption by stand- equipment covered by today’s rule, for Although today’s rule lists some alone equipment designed to use other instance with R–407A or R–744 in refrigerants as unacceptable, we do not alternatives as compared with one supermarket systems, with HFC/HFO believe it will have a detrimental effect designed to use R–404A. One user of blends in remote condensing units, and on this trend in increased energy stand-alone equipment did not provide with hydrocarbons and R–744 in stand- efficiency. In fact, there are multiple any specific results, but stated that ‘‘HC alone equipment and vending machines case studies available that highlight the freezers are significantly more energy- energy efficiency gains achieved by efficient.’’ (Ben and Jerry’s, 2014). True D. Foam Blowing Agents some of the low-GWP refrigerants, such recently displayed several stand-alone 1. Background as R–744, which remains acceptable for units using R–290 refrigerant that were the refrigeration end-uses addressed in reported to be 15% more efficient than Foams are plastics (such as PU or this rule, and R–290 and R–600a, which similar equipment using HFC–134a and polystyrene) that are manufactured remain acceptable subject to use R–404A.87 Similar results were seen by using blowing agents to create bubbles conditions for new stand-alone DuPont, who found that R–449A or cells in the material’s structure. The equipment and new vending machines. reduced energy usage when used in a foam plastics manufacturing industries, (EPA–HQ–OAR–2014–0198–0134, display case connected to a remote the markets they serve and the blowing Refrigeration and Air Conditioning condensing unit. They found that the agents used are extremely varied. The Magazine, 2015).86 As part of our review energy consumption using this range of uses includes building of whether alternatives are ‘‘available,’’ refrigerant was 2% to 3% less than R– materials, appliance insulation, we determined that equipment has been 404A in low-temperature tests and 8% cushioning, furniture, packaging designed for and is capable of meeting to 12% less in medium-temperature materials, containers, flotation devices, existing requirements such as the DOE tests. (EPA–HQ–OAR–2014–0198– filler, sound proofing and shoe soles. energy conservation standards. Below 0077). Some foams are rigid with cells that still we highlight the energy efficiency gains Similar results are being seen with contain the foam blowing agent, which that have been reported for the vending machines. As noted in the can contribute to the foam’s ability to commercial refrigeration end-uses and NPRM, one purchaser of vending insulate. Other foams are open-celled, end-use categories affected by today’s machines indicated that while with the foam blowing agent escaping at rule. introducing over one million units using the time the foam is blown, as for Theoretical and prototype testing R–744, they have increased the energy flexible foams. show similarly good energy efficiency efficiency of their cooling equipment A variety of foam blowing agents have been used for these applications. 86 Refrigeration and Air Conditioning Magazine, 87 Shecco, 2013b. ‘‘HCs gaining market Historically, CFCs and HCFCs were 2015. ‘‘Coca Cola to narrowly miss HFC-free global prominence in US—view from The NAFE Show— typically used to blow foam given their refrigeration target’’ (www.racplus.com/news/coca- Part 1’’ February 18, 2013. This document is cola-to-narrowly-miss-hfc-free-global-refrigeration- accessible at www.hydrocarbons21.com/news/ favorable chemical properties. CFCs and target/8680290.article). viewprintable/3891. HCFCs are controlled substances under

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the Montreal Protocol and subject to • Rigid PU (slabstock and other) • The HFC blend Formacel TI as regulation under the CAA including a includes insulation for panels and unacceptable in all foam blowing end- phaseout of production and import pipes. uses where it was on the list of under section 604 for CFCs and section • Rigid PU and polyisocyanurate acceptable substitutes at the time of 605(b)–(c) for HCFCs and use laminated boardstock includes proposal. restrictions on HCFCs under section insulation for roofing and walls. After considering the comments 605(a). The regulations implementing • Flexible PU includes foam in received on the proposed rule, EPA is section 610 of the CAA include a ban on furniture, bedding, chair cushions, and making several changes to what it sale or distribution of foam products shoe soles. proposed in this final action. First, EPA blown with class I and class II ODS: • Integral skin PU includes car is creating narrowed use limits for HFC– However, for foam products containing steering wheels, dashboards, and shoe 134a and blends thereof, for HFC– a class II ODS, the ban is subject to an soles. 365mfc and blends thereof, and HFC– exception for foam insulation products • Polystyrene (extruded sheet) 245fa and blends thereof for all foam as defined at 40 CFR 82.62. includes foam for packaging and blowing end-uses except rigid PU spray HCFCs, which have a longer phase- buoyancy or flotation. foam. EPA is also creating narrowed use out period than CFCs since they are less • Polystyrene (extruded boardstock limits for certain HFC blends, including potent ozone-depleting substances, have and billet) includes insulation for Formacel TI, Formacel Z–6, and continued to be used to some extent as roofing, walls, floors, and pipes. Formacel B, for those end-uses that were foam blowing agents. In addition, the • Polyolefin includes foam sheets and on the list of acceptable substitutes at SNAP program has found acceptable a tubes. the time of proposal. For all these variety of non-ODS blowing agents, • Phenolic insulation board and substitutes, the narrowed use limits including HFCs (e.g., HFC–134a, HFC– bunstock includes insulation for roofing would be for military or space- and 245fa, HFC–365mfc), hydrocarbons, and walls. aeronautics-related applications where carbon dioxide, water, methylal, methyl reasonable efforts have been made to 2. What is EPA finalizing for foam ascertain that other alternatives are not formate, HFO–1234ze(E), HFO– blowing agents? 1336mzz(Z), and trans-1-chloro-3,3,3- technically feasible due to performance trifluoroprop-1-ene (Solstice 1233zd(E)). For foam blowing end-uses, EPA or safety requirements. For all other proposed to change the status for several uses in these identified end-uses, the Blowing agents are approved on an substitutes, as of January 1, 2017, as status would change to unacceptable, end-use basis. The SNAP program follows: with the exception of rigid PU spray considers the following end-uses: • HFC–134a and blends thereof as foam, for which we are not taking final • Rigid PU (appliance foam) includes unacceptable for all end-uses; action in this rule. Second, we are insulation foam in domestic • HFC–143a, HFC–245fa and HFC– establishing change of status dates that refrigerators and freezers. 365mfc and blends thereof; and the HFC range from January 1, 2017, to January • Rigid PU (spray, commercial blends Formacel B, and Formacel Z–6 as 1, 2021. And, further, for the uses refrigeration, and sandwich panels) unacceptable in all foam blowing end- subject to the narrowed use limits, the includes buoyancy foams, insulation for uses where they were on the list of status would change to unacceptable as roofing, wall, pipes, metal doors, acceptable substitutes at the time of of January 1, 2022. The change of status vending machines, coolers, and proposal, except for rigid PU spray determination for each end-use is refrigerated transport vehicles. foam; and summarized in the following table:

TABLE 8—CHANGE OF STATUS DECISIONS FOR FOAM BLOWING AGENTS

End-use Substitutes Decision*

Rigid Polyurethane: Appliance ...... HFC–134a, HFC–245fa, HFC–365mfc and blends Acceptable subject to narrowed use thereof; Formacel TI, and Formacel Z–6. limits for military or space- and aer- onautics-related applications * and unacceptable for all other uses as of January 1, 2020. Unacceptable for all uses as of January 1, 2022. Rigid Polyurethane: Commercial Refrigeration and HFC–134a, HFC–245fa, HFC–365mfc, and blends Acceptable subject to narrowed use Sandwich Panels. thereof; Formacel TI, and Formacel Z–6. limits for military or space- and aer- onautics-related applications * and unacceptable for all other uses as of January 1, 2020. Unacceptable for all uses as of January 1, 2022. Rigid Polyurethane: Marine Flotation Foam ...... HFC–134a, HFC–245fa, HFC–365mfc and blends Acceptable subject to narrowed use thereof; Formacel TI, and Formacel Z–6. limits for military or space- and aer- onautics-related applications * and unacceptable for all other uses as of January 1, 2020. Unacceptable for all uses as of January 1, 2022. Rigid Polyurethane: Slabstock and Other ...... HFC–134a, HFC–245fa, HFC–365mfc and blends Acceptable subject to narrowed use thereof; Formacel TI, and Formacel Z–6. limits for military or space- and aer- onautics-related applications * and unacceptable for all other uses as of January 1, 2019. Unacceptable for all uses as of January 1, 2022.

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TABLE 8—CHANGE OF STATUS DECISIONS FOR FOAM BLOWING AGENTS—Continued

End-use Substitutes Decision*

Rigid Polyurethane and Polyisocyanurate Lami- HFC–134a, HFC–245fa, HFC–365mfc and blends Acceptable subject to narrowed use nated Boardstock. thereof. limits for military or space- and aer- onautics-related applications * and unacceptable for all other uses as of January 1, 2017. Unacceptable for all uses as of January 1, 2022. Flexible Polyurethane ...... HFC–134a, HFC–245fa, HFC–365mfc, and blends Acceptable subject to narrowed use thereof. limits for military or space- and aer- onautics-related applications * and unacceptable for all other uses as of January 1, 2017. Unacceptable for all uses as of January 1, 2022. Integral Skin Polyurethane ...... HFC–134a, HFC–245fa, HFC–365mfc, and blends Acceptable subject to narrowed use thereof; Formacel TI, and Formacel Z–6. limits for military or space- and aer- onautics-related applications * and unacceptable for all other uses as of January 1, 2017. Unacceptable for all uses as of January 1, 2022. Polystyrene: Extruded Sheet ...... HFC–134a, HFC–245fa, HFC–365mfc, and blends Acceptable subject to narrowed use thereof; Formacel TI, and Formacel Z–6. limits for military or space- and aer- onautics-related applications * and unacceptable for all other uses as of January 1, 2017. Unacceptable for all uses as of January 1, 2022. Polystyrene: Extruded Boardstock and Billet (XPS) HFC–134a, HFC–245fa, HFC–365mfc, and blends Acceptable subject to narrowed use thereof; Formacel TI, Formacel B, and Formacel limits for military or space- and aer- Z–6. onautics-related applications * and unacceptable for all other uses as of January 1, 2021. Unacceptable for all uses as of January 1, 2022. Polyolefin ...... HFC–134a, HFC–245fa, HFC–365mfc, and blends Acceptable subject to narrowed use thereof; Formacel TI, and Formacel Z–6. limits for military or space- and aer- onautics-related applications * and unacceptable for all other uses as of January 1, 2020. Unacceptable for all uses as of January 1, 2022. Phenolic Insulation Board and Bunstock ...... HFC–143a, HFC–134a, HFC–245fa, HFC–365mfc, Acceptable subject to narrowed use and blends thereof. limits for military or space- and aer- onautics-related applications * and unacceptable for all other uses as of January 1, 2017. Unacceptable for all uses as of January 1, 2022. * Under the narrowed use limit, use is limited to military or space- and aeronautics-related applications where reasonable efforts have been made to ascertain that other alternatives are not technically feasible due to performance or safety requirements.

(a) What other alternatives does EPA considered to be non-ozone- exposure limit for the substitute is not find pose lower overall risk to human depleting.88 89 For the uses on which we exceeded in the end-uses where they are health and the environment? are taking final action, the substitutes listed as acceptable, and thus, toxicity remaining acceptable have significantly risks are comparable. In the NPRM, EPA included a lower GWP than the substitutes for comparative analysis, end-use by end- Most of the substitutes that remain which we are changing the status, with use, of the substitutes for which EPA acceptable are not VOC (e.g., water) or GWPs ranging from zero (water, vacuum proposed to change the status and the are exempt from the definition of VOC panels) to 124 (HFC–152a) as compared other available alternatives. 79 FR at under CAA regulations (see 40 CFR 46151 to 46154. Most of the other with GWPs ranging from 725 to 51.100(s)) addressing the development alternatives that EPA identified as approximately 1,500. The substitutes of SIPs to attain and maintain the having lower risk than those for which changing status and the substitutes national ambient air quality standards. we proposed to change the status have remaining acceptable all can be used Examples of VOC-exempt blowing such that the recommended workplace zero ODP or have negligible impact on agents include acetone, CO2, ecomate, stratospheric ozone. One alternative that HFC–152a, HFO–1234ze(E), methyl contains chlorine, trans-1-chloro-3,3,3- 88 Wang D., Olsen S., Wuebbles D. 2011. formate, and Solstice 1233zd(E). Other TM ‘‘Preliminary Report: Analyses of tCFP’s Potential trifluoroprop-1-ene (Solstice Impact on Atmospheric Ozone.’’ Department of acceptable foam blowing agents are 1233zd(E)), has an ODP of 0.00024 to Atmospheric Sciences. University of Illinois, VOC, including saturated light HCs, 0.00034 and estimates of its maximum Urbana, IL. September 26, 2011. Exxsol blowing agents, and methylal. In potential impact on the ozone layer 89 Patten and Wuebbles, 2010. ‘‘Atmospheric the risk screens that EPA performs when Lifetimes and Ozone Depletion Potentials of trans- we review a substitute, we consider indicate a statistically insignificant 1-chloro-3,3,3-trichloropropylene and trans-1,2- impact, comparable to that of other dichloroethylene in a three-dimensional model.’’ VOC emissions impacts, taking into substitutes in the same end-uses that are Atmos. Chem. Phys., 10, 10867–10874, 2010. account the rate of blowing agent

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emissions of particular foam end-uses, comparative risk analysis of the was warranted. We received a general estimated market size, and the presence substitutes available before taking final comment from EIA that the change of of emission controls in manufacturing action. Thus, the substitutes currently status date should be January 1, 2016, for different end-uses. Estimated listed as acceptable for spray foam are but they provided no information emissions for these three substitutes is not affected by this rule but may be the supporting this earlier date. We received sufficiently low that we do not expect subject of future rulemaking. a comment from one systems house, significant air quality impacts (ICF, For more information on the Huntsman, that provided specific 2014h). The manufacturer of HFO– environmental and health properties of technical information supporting a later 1336mzz(Z) claims that this substitute the different foam blowing agents, change of status date for other PU end- has low photochemical reactivity and please see the proposed rule at 79 FR uses, but not PU and polyisocyanurate has petitioned EPA to exempt it from 46151 to 46154 and a technical support laminated boardstock. Another systems the definition of VOC for purposes of document that provides additional house, Dow Chemical, specifically the development of SIPs to attain and Federal Register citations (EPA, 2015d) mentioned that polyisocyanurate maintain the national ambient air in the docket. boardstock has previously safely quality standards, but EPA has not yet (b) When will the status change? transitioned to use of hydrocarbons. acted on that petition. Given the large Therefore, as proposed, we are variety of alternatives that do not For foam blowing agents, the time at establishing January 1, 2017 as the date increase VOC emissions, and the which the status will change varies by of the status change for PU and estimated low impacts from those end-use. polyisocyanurate laminated boardstock. alternatives that are VOC, we believe For the flexible PU, polystyrene For all other foam blowing end-uses that changing the status of certain HFC extruded sheet, and phenolic insulation for which we are taking final action, we foam blowing agents through this action board and bunstock end-uses, many received comments identifying will not significantly increase users have already transitioned from the technical challenges that mean other environmental or health risks. foam blowing agents subject to the alternatives would not be available until Some of the substitutes that remain status change. No commenters suggested a later date than January 1, 2017. acceptable are flammable, but the that, or provided information that Systems houses and appliance hazards of these flammable compounds would suggest, a later change of status manufacturers also mentioned the need can be adequately addressed in the date is necessary for these end-uses. for third-party testing for end-uses such process of meeting OSHA regulations Therefore, as proposed, we are as extruded polystyrene boardstock and and fire codes in all end-uses except establishing January 1, 2017 as the date billet, rigid PU appliance, and rigid PU certain rigid PU spray foam of the status change for those end-uses. commercial refrigeration and sandwich applications. Examples of acceptable For PU integral skin, the systems panels. Systems houses and DuPont, a flammable blowing agents are HFC– house BASF stated that they have had manufacturer of foam blowing agents, 152a, ecomate, Exxsol blowing agents, limited success thus far with HFO also were concerned with the supply of methylal, methyl formate, and saturated blowing agents in this end-use and lower-GWP foam blowing agents, light hydrocarbons. would require at least two years to especially supply of HFOs (HFO– Although EPA has listed a number of formulate and test a system and another 1234ze(E) and HFO–1336mzz(Z)) and flammable alternatives as acceptable for six months for the new system to be trans-1-chloro-3,3,3-trifluoroprop-1-ene, most foam end-uses, that is not the case commercialized and accepted by their and indicated this was a constraint that for rigid PU spray foams. Some of the customers in this end-use. However, prevents transitioning away from higher lower-GWP, flammable alternatives that this commenter did not provide specific GWP HFCs by January 1, 2017. EPA are listed as acceptable in other foam details of the technical challenges they agrees that there is validity to these blowing end-uses, such as C3–C6 face nor why they believe two years, concerns, as discussed further below for hydrocarbons and methylal, are not rather than a shorter time, is required each end-use. acceptable for use in rigid PU spray for formulation and testing. Nor did the For rigid PU slabstock, a systems foam. For rigid PU spray foam commenter explain why customer house (Huntsman) commented they applications, flammability risks are of acceptance of the new system was need additional time for testing and particular concern, because they are related to technical feasibility that suggested a change of status date of applied onsite, sometimes in proximity would require an additional six months January 1, 2019. Huntsman gave three to hot, flammable substances such as beyond the time needed for formulation specific reasons for why there should be tar. Flammability risks are more difficult and testing. A period of two and a half a later change of status date than to mitigate in rigid PU spray foam than years after issuance of the NPRM would January 1, 2017 for this end-use: They in most other foam end-uses because, be January 2017, rather than the July 1, believe it will take more than two years unlike in a factory setting, in many 2017 suggested by the commenter. to develop products with alternatives, cases ventilation cannot be provided There are alternative foam blowing including third-party certification; they that removes flammable vapors and agents in addition to HFOs in this end- believe the long-term performance of maintains them below the lower use that pose less risk overall to human HFO foams is not widely proven; and flammability limit, and it is not health and the environment, such as they believe there is insufficient supply practical to make all electrical fixtures HFC–152a and light saturated and competition in the market for HFOs. explosion proof when applying rigid PU hydrocarbons. Therefore, as proposed, Huntsman mentioned specific technical spray foam in a residential building. we are establishing January 1, 2017, as challenges, such as testing the There are three main types of rigid PU the date of the status change for PU compatibility and stability of the spray foam: High-pressure two-part integral skin foam. blowing agents with the polyol blends spray foam systems, low-pressure two- For the rigid PU and polyisocyanurate (i.e., other components needed in the part spray foam systems, and one- laminated boardstock end-use, we did foam formulation) and difficulties with component foam sealants. not receive any specific technical stability of the catalysts when used with For rigid PU spray foam, we are not information nor any comments stating HFO blowing agents. They also stated taking final action in this rule. We that a change of status date later than that extended testing of more than six intend to conduct a more extensive the proposed date of January 1, 2017, months was required to test strength,

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thermal insulation capability and there is unlikely to be a sufficient temperature freezers such as those used dimensional stability of the foam, supply of alternatives before January 1, in the pharmaceutical industry, including aging testing. Huntsman also 2017, for appliance foam; the supply is mentioned that some laboratory mentioned testing the fire properties of likely to increase once a commercial products using alternative foam blowing the foams with different foam blowing plant for HFO–1336mzz(Z) opens agents are medical devices listed by agents as well as optimization of the (currently scheduled to open in 2017). FDA, which would require re-approval blends. Huntsman stated that these We considered the supply constraints after changing the blowing agent. steps required one to one and a half mentioned by both systems houses and Representatives of this application years initial development by the chemical producers (until 2017), suggested coordinating with timelines of systems house that would then be technical constraints with alternative EU regulations (2022), without followed by trials and custom foam blowing agents that could result in describing specifically why more time modification at their customers’ failed appliances with insufficient might be required for very low facilities using their specific equipment research (requiring one to two years), temperature freezers than for foam and claimed that would require one to and the need for third-party certification blowing agents in other commercial two years in addition. Considering the of each model (requiring one and a half refrigeration equipment which also technical constraints described by the to two years), and we agree that it is require third-party review. It is systems house such as the need to reasonable to expect it would take until reasonable to expect that the timeframe research different catalysts and the 2020 for alternatives to be available for required for commercial refrigeration lower stability of some alternative foam this end-use. We are establishing a foam and sandwich panels is blowing agents, we agree that it is change of status date of January 1, 2020, comparable to that for appliance foam, reasonable to expect it would take three for appliance foam which allows requiring until 2017 for sufficient and a half years after this rule is final sufficient time to work out these supply, and then another three years for for alternatives to be available for this technical issues and to ensure a development and testing of formulations end-use. Therefore, we are establishing sufficient supply of various alternatives. and third-party testing of the resulting a change of status date of January 1, For rigid PU commercial refrigeration equipment or panels. We are 2019, for rigid PU slabstock. and sandwich panels, equipment establishing a status change date of For rigid PU appliance foam, one manufacturers and systems houses such January 1, 2020, for commercial systems house, BASF, commented that as Huntsman, Dow and BASF refrigeration and sandwich panel foams, it took five years for them to assist the mentioned similar issues to those raised based on the time needed to resolve appliance manufacturer Whirlpool in its for appliance foam. Huntsman technical issues and on supply of conversion from an HFC-blown foam to mentioned technical challenges in alternative foam blowing agents. an HFO-blown foam, excluding developing new formulations for PU For PU marine flotation foam, we flammability certification testing. While insulation foam, such as testing the received a comment from BASF the Agency recognizes that as industry compatibility and stability of the indicating that systems houses will builds experience with new blowing blowing agents with the polyol blends require at least a year for technical agents, future transitions may be quicker (i.e., other components needed in the development, a year for certification because of the knowledge gained from foam formulation) and difficulties with testing to U.S. Coast Guard standards, a earlier transitions, the Agency also stability of the catalysts when used with year for testing of the stability of the understands that it may not be possible HFO blowing agents. They also stated foam product, as well as one to two by 2017 to complete a full transition to that extended testing of more than six years for customer approval, given the alternative blowing agents for all months was required to test strength, large number of customers for this type appliance manufacturers, particularly if thermal insulation capability and of foam. BASF expected issues similar appliance manufacturers are dimensional stability of the foam, to those for appliance foam, such as maintaining or improving the thermal including aging testing. Huntsman also dimensional stability and cracking, insulating value of the foam to meet mentioned the need for testing fire because injecting flotation foam is a DOE energy conservation standards. properties of foams with different foam similar process and uses similar Appliance manufacturers and BASF blowing agents and optimization of the polymers in the foam formulation. have described the difficulty and time blends. Huntsman stated that these BASF asked that EPA clarify whether needed to overcome technical steps required one to one and a half marine flotation foam fits under spray difficulties when using alternative years initial development by the foam and whether this application is blowing agents, particularly olefins such systems house in a process involving ‘‘exempted’’ or instead must transition as trans-1-chloro-3,3,3-trifluoroprop-1- iterative testing. Huntsman specifically to alternatives. EPA consulted with the ene or HFOs, that result in cracking, mentioned steps such as developing U.S. Coast Guard regarding their thinning of the foam, and irreparable new foam formulations (one to one and certification process and the necessary field failures of the equipment. a half years), trials at the customers’ time for manufacturers to test and Appliance manufacturers and systems plants (half to one year), third-party certify that they meet the requirements house Huntsman also mentioned the certification by UL, Intertek or Factory at 33 CFR part 183 (Boats and need for energy efficiency testing and Mutual (one to one and a half years), Associated Equipment), Subparts F third-party certification of equipment and implementation of engineering (Flotation Requirements for Inboard and claimed that would require at least changes at the customers’ facilities (half Boats, Inboard/Outdrive Boats, and one and a half to two years after the to one year). We also considered that Airboats), G (Flotation Requirements for system house’s development of foam based on the information and comments Outboard Boats Rated for Engines of formulations. However, the time we have received, there is unlikely to be More than 2 Horsepower), and H required for ensuring adequate a sufficient supply of alternatives for (Flotation Requirements for Outboard performance and third-party testing this end-use before January 1, 2017, as Boats Rated for Engines of 2 Horsepower warrants a date as late as January 1, discussed above for appliance foam. The or Less), which require all 2020. In addition to technical Laboratory Products Association, whose manufacturers of monohull recreational constraints, we also considered that members manufacture very low boats less than twenty feet in length

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(except sailboats, canoes, kayaks, retrofit current facilities to work with an because other construction materials inflatable boats, submersibles, surface alternative blowing agent. One (e.g., boards) may limit the thickness of effect vessels, amphibious vessels, and manufacturer, Pregis, stated that they boardstock foam. Thus, if alternative race boats) to provide sufficient flotation must upgrade facilities if they are to foam blowing agents did not produce foam within the boat to ensure that the safely adopt flammable blowing agents foam meeting thermal insulation boat will not sink if the boat swamps or when they have been using a requirements, the transition in this end- capsizes. This requirement allows the nonflammable agent in the past. EPA use might not reduce climate effects as occupants to hold onto the boat until recognizes that such changes to a intended. Given the technical they can be rescued. We also met with facility may take several years. constraints, the need for third-party representatives from the marine Considering the heightened challenges certification testing, and building code industry and heard directly from them with these specialized facilities, we are requirements for energy efficiency that about the necessary steps for transition. establishing a change of status date of may limit the available blowing agents, After considering the various steps January 1, 2020, for polyolefin. we are establishing a change of status needed to complete the transition, we For XPS, manufacturers of XPS raised date of January 1, 2021, for XPS. EPA conclude that the need for the systems concerns about the energy efficiency of notes that there is now a plant houses to perfect formulations that the foam using alternative agents, the producing HFO–1234ze(E) in perform similar or better than what is extensive testing required, third-party commercial quantities (Honeywell, being used today will take additional certification, and the lack of alternatives 2015) and thus we do not believe that time beyond what the Agency and recommended that the status of supply will limit the availability of considered. In particular, in order to HFC–134a change on January 1, 2021. alternatives. research and test foam formulations Owens Corning mentioned specific (c) Military and Space- and Aeronautics- sufficiently to avoid issues with steps such as laboratory studies to Related Applications dimensional stability and field failures, develop or test an alternative blowing and to ensure safety of the flotation We proposed to create a narrowed use agent, pilot tests, conversion of pilot limit exception to the unacceptable foam and boats built with it, we expect testing to line production, quality it would take at least another two and listing for military and space, and assurance and quality control testing of aeronautics uses that would allow a half to three years beyond the the final product, and product proposed date of January 1, 2017. Thus, continued use of HFC and HFC blend certification. Dow and Owens Corning foam blowing agents through December we are establishing January 1, 2020 as estimated it would take at least six years 31, 2021. These blowing agents were the change of status date for marine to convert multiple lines and multiple proposed to be unacceptable for military flotation foam. We do not believe there facilities from HFC–134a to an or space- and aeronautics-related is sufficient information at this time to alternative. Owens Corning and Dow applications as of January 1, 2022. For support a change of status date later also cited an EPA memorandum the reasons discussed in the proposed than January 1, 2020. However, given supporting a transition away from rule, we are finalizing these provisions the concern for safety associated with HCFC–22 and HCFC–142b as foam as proposed. marine floatation foam, we will monitor blowing agents, which found that four EPA received comments from DoD the situation carefully and consult with years was necessary. Owens Corning and NASA supporting EPA’s proposed the U.S. Coast Guard. Given that under raised concerns about the viability of narrowed use limit, and suggesting that 33 CFR 183 manufacturers are required CO2 based on its impact on energy this additional time is needed to to certify to the U.S. Coast Guard that efficiency; the safety of hydrocarbons identify, test and qualify substitutes for their boats have sufficient flotation to because of their flammability and the certain specialty applications. Boeing meet the regulations, EPA recognizes need to consider impacts of additional commented that the DoD and NASA that the U.S. Coast Guard may be able flame retardants on the foam; and the need adequate time to develop, test and to provide information concerning commercial availability of HFO– qualify an acceptable substitute for certification with the alternatives. As 1234ze(E) and its technical viability. HFC–245fa, which is used in many January 2020 approaches, we will Dow stated that of the acceptable foams they rely on for density foam continue to consult with the U.S. Coast alternatives that EPA mentioned in the insulation for a number of space and Guard and consider whether it is NPRM, only HFO–1234ze(E) has defense applications (e.g., rockets). appropriate to adjust the change in sufficiently low thermal conductivity Boeing did not identify any specific status date or to otherwise modify the and low permeability to meet industry technical challenges but raised a general SNAP listing to address any uses for standards (e.g., ASTM C 578). We agree concern that, based on its experience which there may be technical challenges that additional time is required to test with developing substitutes for foam beyond January 1, 2020. We are listing and improve the quality of XPS blowing agents and the normal course of this use separately from spray foam due manufactured using alternative foam time to develop and qualify a substitute, to differences in the manner in which blowing agents to ensure that it meets or it will take until 2027 to fully test and the foam is dispensed which make this improves upon thermal insulation qualify a substitute. We do not believe use more similar to appliance foam and requirements and passes third-party there is sufficient information at this commercial refrigeration foam than certification testing; it is reasonable to time to support a change of status date spray foam. Our understanding is that expect that at least five years is likely to later than January 1, 2022; however, as flotation foam is typically injected be required for all steps to transition January 2022 approaches, we can rather than sprayed. away from HFC–134a, given the status consider whether it is appropriate to For polyolefin, there are niche of current efforts to adopt lower-GWP adjust the change in status date or to applications and specialized plants that alternatives for XPS. Members of the otherwise modify the SNAP listing to may have particular difficulty in Extruded Polystyrene Association address any uses for which there may be transitioning away from HFC–134a (XPSA) have stated that with XPS, it is technical challenges beyond January 1, because of the time required to build a not always possible to increase the 2022. pilot plant to work with products using thickness of the foam to maintain Users that wish to use one of the a new gaseous blowing agent and to thermal insulation requirements, substitutes listed as acceptable, subject

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to narrowed use limits, in a military or explanation and opportunity for Response: EPA notes that in a number space- and aeronautics-related comment in a subsequent rulemaking. of foam blowing end-uses, the industry application must make a reasonable has already effectively transitioned 3. How is EPA responding to comments effort to ascertain whether other away from HFCs and any additional concerning foam blowing end-uses? substitutes or alternatives are transitions for these end-uses can be technically feasible and, if not, to (a) Timeline made by January 1, 2017. Further, we document such results. See 40 CFR Comment: EPA received comments received no comments suggesting a later 82.180(b)(3). Users are not required to from more than 500 commenters transition date is necessary specifically report the results of their investigations concerning the proposal of January 1, for these end-uses. We received to EPA, but must retain the 2017, as the status change date for the comments suggesting that this change of documentation in their files for the foam blowing agents addressed in the status could be made by January 1, purpose of demonstrating compliance. proposed rule. EIA and Honeywell 2016, but in the unlikely event that Documentation should include suggested an earlier date of January 1, there are any end users that have not descriptions of: 2016, for all or most foam end-uses. already transitioned, we are concerned • Process or product in which the Most other commenters suggested later that this date may be too soon to finish substitute is needed; dates, varying from July 1, 2017, to adopting an alternative. Therefore, the • Substitutes examined and rejected; final rule retains the proposed change of • January 1, 2025. Some commenters Reason for rejection of other status date of January 1, 2017, for those alternatives, e.g., performance, technical indicated that they are small companies and they believe additional time is uses (polystyrene extruded sheet, or safety standards; and/or flexible polyurethane, and phenolic • Anticipated date other substitutes needed beyond that in the NPRM to reduce cost pressures. Some insulation board and bunstock). In will be available and projected time for addition, we received no comments switching. commenters suggested different dates for specific uses and gave a number of specific to rigid PU and (d) How will the requirements apply to reasons for which dates would be polyisocyanurate laminated boardstock exports and imports? appropriate for those uses. General that indicated there were challenges for this end-use that would prevent a reasons given for the need for additional Since regulations establishing the transition to alternatives that pose lower time include: Time needed for capital SNAP program were promulgated in overall risk to human health and the investments, for employee training, for 1994, we have interpreted the environment by January 1, 2017. EIA re-formulating systems; for designing, unacceptability determinations in this suggested that we set a status change purchasing, awaiting receipt of and sector to apply to blowing foam with the date of January 1, 2016, for this end-use, converting equipment; for obtaining foam blowing agent and not to products but did not provide information local permits for VOC emissions; for made with foam (e.g., 65 FR 42653, supporting an earlier transition for this meeting company and external testing 42656; July 11, 2000). That is, an end-use. Therefore, we are retaining this requirements (e.g., UL/Factory Mutual unacceptable foam blowing agent may date in the final rule for rigid PU and not be used in, imported into, or (FM) fire safety requirements, DOE polyisocyanurate laminated boardstock. exported from the United States. energy conservation standards, building EPA agrees that additional time is However, products made overseas with codes, R-value testing for aged foam), needed for other specific foam types and unacceptable foam blowing agents may and if switching to a flammable foam addresses the basis for establishing later be imported. For example, commercial blowing agent, facility engineering change of status dates in the discussion refrigerators containing appliance foam design and refurbishment. Several of each end-use above. We appreciate blown with an unacceptable blowing commenters stated that there are no and agree with commenters that note agent may be imported into the United ‘‘drop in’’ replacements, and that the importance of maintaining energy States, though appliances manufactured product research and development is an efficiency for appliances and buildings in the United States may not be iterative process. Owens Corning cited by ensuring there is adequate time to manufactured with foam blown by that EPA’s previous recognition of time develop and deploy new formulations same agent. limitations in the conversion away from that meet or exceed existing thermal In the proposal, EPA took comment HCFC–142b to HFC–134a, including an insulating values. Further, we recognize on a different interpretation of our EPA staff memorandum that estimated a that third-party testing or witness regulations under which the four-year transition time period in the testing will require additional time that unacceptability determination would foam sector. Some commenters also may be outside the control of the apply to imported products containing suggested that EPA adopt the same dates companies manufacturing the foam. closed cell foam that contain any of the for transition for foams as in the Some of this testing, such as fire safety blowing agents listed as unacceptable, European Union’s ‘‘F-gas’’ rule: 2020 for testing for construction foams, could as well as applying to the blowing agent XPS and 2023 for other foam types. In help reduce any potential flammability itself. Public commenters stated that addition, some commenters suggested risks associated with the use of this was a significant departure from the that there is an insufficient supply of flammable foam blowing agents. Agency’s previous interpretation and low-GWP foam blowing agents that will Businesses of all sizes will be able to suggested that EPA needed to explain maintain energy efficiency and benefit from the later change of status the basis for such a change. In addition, insulation value of foam. Huntsman dates in this final rule. We discuss some commenters pointed out that the stated that there will not be enough comments specific to each end-use proposal only allowed 60 days before capacity and competition in the HFO below in this section. this change in interpretation would foam blowing market by January 1, Comment: Huntsman, a systems apply to HCFC–141b, which they 2017, to meet the needs of the PU foam house, commented they need additional viewed as insufficient time to adjust. industry. DuPont commented that while time for testing alternatives in the PU EPA is not finalizing this change in its multiple low GWP alternatives will be slabstock end-use and suggested a interpretation in this action; however, available for foam, they will not be change of status date of January 1, 2019. we plan to continue assessing the merits broadly available in the proposed Huntsman mentioned specific technical of this change and may provide further timeframe. challenges with reformulating these

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foam products, such as testing the Solvay commented that technical before the change of status date we compatibility and stability of the questions about alternatives still remain, proposed—January 1, 2017 for blowing agents with the polyol blends such as whether substitutes other than appliance foam. The supply is likely to (i.e., other components needed in the HFCs attack panel walls or appliance increase once a commercial plant for foam formulation). They also stated that walls, which could compromise product HFO–1336mzz(Z) opens (currently extended testing of more than six integrity and safety, and whether other scheduled to open in 2017) and thus months was required to test strength, alternatives adhere properly to supply would not be a concern for a thermal insulation capability and appliance and panel walls, or to walls change of status date of January 1, 2020. dimensional stability of the foam, and roofs, which is necessary to satisfy Comment: For rigid PU commercial including aging testing. Huntsman also energy efficiency mandates. Huntsman refrigeration foams and sandwich mentioned testing the fire properties of mentioned the need for energy panels, commenters suggested change of the foams with different foam blowing efficiency testing and third-party status dates ranging from July 1, 2018, agents as well as optimization of the certification of equipment that would to ten years after the rule is final. The blends. Huntsman stated that these require at least one and a half to two majority of commenters suggested status steps required one to one and a half years after the system house’s change dates ranging from July 2018 to years initial development by the development of foam formulations, January 1, 2020. NAFEM and systems house, to be followed by trials which it estimated to take one to one manufacturers of commercial and custom modification at their and a half years. Huntsman suggested a refrigeration equipment such as customers’ facilities using their specific change of status date of 2019 for PU Traulsen suggested a much later date of equipment that would require another appliance foam. The Association of 2025 for all modifications required for one to two years. The commenter also Home Appliance Manufacturers commercial refrigeration equipment, raised concerns about whether sufficient (AHAM) raised concerns about the including both foam blowing agents and supply of alternative foam blowing potential adverse impacts on appliance refrigerant. agents would be available by January 1, quality, performance, and longevity, as As an initial matter, Huntsman and 2017, and mentioned that there is well as costs, of a transition by January DuPont mentioned the lack of sufficient currently a single supplier of a key low 1, 2017, and stated that the easiest and supply of alternatives to allow all foam GWP foam blowing agent, trans-1- cheapest transitions have been done, users to convert in 2017. In support of chloro-3,3,3-trifluoroprop-1-ene. and will be done, first. AHAM suggested a later change of status date, equipment Response: Considering the technical a change of status date of 2020 for manufacturers and systems houses such constraints raised by the systems house, appliance foam to allow for as Huntsman, Dow and BASF such as the need to research different coordination with DOE energy mentioned similar technical issues to those for appliance foam, such as the catalysts and fire retardants and the conservation standards that could take compatibility and stability of the lower stability of some alternative foam effect in 2020 for household blowing agents with the polyol blends blowing agents, we agree that safer refrigerators and freezers. In addition, and dimensional stability of the blown alternatives will not be available for this AHAM claimed a 2020 change of status foam. BASF specifically mentioned end-use for three to three and a half date was necessary because of the reactions between the new blowing years. Therefore, we are establishing a extensive time required for testing and agents and the catalysts in the foam that change of status date of January 1, 2019 third-party certification of multiple could cause the finished foam to shrink, for PU slabstock foams. models, and additional time needed to Comment: Commenters suggested as well as the need to develop a new set ensure proper development of new change of status dates for rigid PU of flame retardants. Commenters also alternatives to avoid field failures of the appliance foam, ranging from July 1, stated that extended testing of more 2017 to January 1, 2020. BASF equipment. than six months was required to test suggested a transition date of July 1, Response: We agree that it is strength, thermal insulation capability 2017 for foam used in domestic important that appliance manufacturers and dimensional stability of the foam, refrigerators. In support of a July 1, are able to ensure the quality, including aging testing. Huntsman 2017, change of status date, BASF performance, and useful lifetime of their specifically mentioned steps such as indicated that HFO-containing foams equipment. Multiple commenters developing new foam formulations (one are incompatible with common provided information and photographs to one and a half years), trials at the polymers used in household demonstrating that improperly customers’ plants (half to one year), refrigerators and that it will take a implemented alternative foam blowing third-party certification by UL, Intertek minimum of six months to perform agents can create defects in the or Factory Mutual (one to one and a half durability and field testing and possibly appliances, such as cracking or years), and implantation of engineering to change construction materials to improper adhesion to the appliance changes at the customers’ facilities (half resolve this known problem, as well as cabinet. BASF suggested that it would to one year), with iterative testing often at least six months for testing for take closer to two and a half to three required. Unified Brands and NAFEM compliance with federal energy years to work out the technical issues suggested that there are limitations to conservation standards and 12 more since they have already developed using methyl formate in commercial months for conversion at each commercially available systems using refrigeration foam that would not allow customer’s facility. BASF also stated HFOs and hydrocarbons for other a transition by January 1, 2017, stating: that they had already developed appliance manufacturers. Because of the ‘‘Methyl Formate is also commercially available systems using time required for ensuring adequate environmentally friendly, but has had cyclopentane and HFOs, so they performance and third-party testing, we significant shrinkage issues once units expected this transition to take less time believe that other alternatives will not have been placed in the field. This agent than the five years that it took to assist be available for an industry-wide requires very specific foaming processes the appliance manufacturer Whirlpool transition until January 1, 2020. In to be developed to ensure proper in its conversion from an HFC-blown addition to technical constraints, we stability of the foam over time.’’ foam to an HFO-blown foam, excluding also considered that there is unlikely to Response: We agree that there are a flammability certification testing. be a sufficient supply of alternatives number of technical challenges that will

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require approximately four to five years 2017. EPA received comments from 436 particular difficulty in transitioning for the industry as a whole to transition boat manufacturers to the effect that the away from HFC–134a; DuPont suggested to alternatives, including stability of continued introduction of regulations that EPA consult with manufacturers in new formulations and difficulty with on the boating industry this end-use on appropriate transition using existing catalysts with alternative disproportionately affects their small timing. One manufacturer, Pregis, stated foam blowing agents. We agree that businesses because the cost of that they must upgrade facilities if they there is unlikely to be a sufficient compliance with these standards is are to safely adopt flammable blowing supply of alternatives for this end-use relatively equal across production agents when they have been using a before the proposed change in status scales. According to these comments, nonflammable agent in the past. They date January 1, 2017. However as EPA’s proposed timeline for ‘‘phasing also suggested that EPA consider a discussed above for appliance foam, out’’ HFC–134a will have highly change of status date of 2022 because of additional supply should be available in negative consequences for all facets of the time required to build a pilot plant 2017 when a new manufacturing plant the marine industry, but it will have the to work with products using a new is scheduled to open and there should greatest impact on their small boats, gaseous blowing agent (two years)— be a more than sufficient supply to meet small businesses, and middle class which has yet to begin—and the time to a status change date of January 1, 2020. customers. EPA received 93 letters from retrofit current facilities to work with an The later dates of ten years after the marine industry stating that the alternative blowing agent (another two finalization of the rule or 2025 boating industry consists primarily of years). suggested by NAFEM and other OEMs, small businesses that would face severe Response: EPA recognizes that appear to be based on the assumption impacts as a result of their limited construction of a pilot plant and making that stand-alone retail food refrigeration financial resources and limited the necessary changes to an existing equipment would need to use propane influence on markets and supply chains. facility could take approximately four or other flammable refrigerants and that The National Marine Manufacturers years after this rule is final; however, it changes would need to be made to Association (NMMA) also commented is not clear from Pregis’s description building codes to support the adoption that the NPRM date would present a that they will require six years or more. of these flammable refrigerants. financial and logistical hardship for Considering the heightened challenges However, as discussed above in section many small boat builders. NMMA urged with these specialized facilities, we are V.C on commercial refrigeration, there the EPA to provide an extension of the establishing a change of status date of are other available refrigerants that are proposed timeline. Commenters from January 1, 2020, for polyolefin. nonflammable. Moreover, the the marine industry suggested 2022 as a Comment: Manufacturers of XPS commenters did not make clear why, transition date and mentioned the lack raised the energy efficiency of the foam even assuming that alternative of availability of feasible options and using alternative agents as an issue, the refrigerants would not be available until marine application’s dependency upon extensive testing required, third-party 2025, the insulation foam for such chemical availability from the larger certification, and the lack of alternatives equipment cannot be made using safer industry (e.g., HFC–134a for use in as reasons for allowing until January 1, alternatives well before 2025. Thus we MVAC). These commenters also 2021 for a change of status. Owens do not believe that safe alternative foam mentioned the need for testing to meet Corning mentioned specific steps such blowing agents will not be available Coast Guard requirements at 33 CFR as laboratory studies to develop or test before 2025. part 183. an alternative blowing agent, pilot tests, Comment: Honeywell stated that ‘‘the Response: Regarding the supply of conversion of pilot testing to line technical requirements [for flotation alternatives, we recognize that a plant production, quality assurance and foam in boats] may be much simpler that would produce HFO–1234ze(E) in quality control testing of the final than other industries in which commercial quantities has recently been product, and product certification. Dow customers are already transitioning’’ built (Honeywell, 2015). Additionally, and Owens Corning estimated it would and suggested that a transition date of supply of HFC–134a should not be an take at least six years to convert January 1, 2016 might be achievable for issue as many other uses of that multiple lines and multiple facilities this application. BASF commented that substitute will be ending in the next from HFC–134a to an alternative. Owens systems houses will require at least a several years. We do not agree that the Corning and Dow also cited an EPA year for technical development, a year certification processes will require memorandum supporting a transition for certification testing to U.S. Coast additional time beyond EPA’s away from HCFC–22 and HCFC–142b as Guard standards, a year for testing of the understanding at the time of the foam blowing agents, which found that stability of the foam product, as well as proposal. It is our understanding that four years was necessary. Owens one to two years for customer approval, HFOs can be used in this type of foam. Corning and XPSA commented that a given the large number of customers for However, as with appliance foams, we more realistic status change date of 2021 this type of foam. This commenter agree that systems houses will need would also be consistent with the recommended that EPA set a change of time to perfect formulations that proposed status change date for MVAC. status date no earlier than July 1, 2019. perform similar or better than what is IP Moulding commented that it had BASF expected issues seen with being used today. In particular, issues tried to use CO2 and water in its appliance foam also to exist with marine with stability of the blown foam likely extruded polystyrene molding process flotation foam, such as dimensional will require several years to work out, in the past and found it did not create stability and cracking, because injecting as discussed above for appliance foam. sufficient internal pressure for their flotation foam is a similar process and Considering this information, we are product; they are further investigating uses similar polymers in the foam establishing January 1, 2020, as the this option with their polystyrene formulation. Ninety-four letters from the change of status date for marine supplier. Mexichem commented that marine industry comment that, flotation foam. carbon dioxide may not be suitable for according to their suppliers in the Comment: DuPont stated that the XPS industry because of its high boating industry, a drop-in replacement polyolefin plants typically are thermal conductivity (low insulation for HFC–134a currently does not exist, specialized plants for niche applications value) and processing difficulties. and will not be readily available by and that this end-use may have Owens Corning raised concerns about

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the viability of CO2 based on its impact although encouraging, is not sufficient and therefore different alternatives and on energy efficiency; the safety of to determine if CO2 is the sole blowing different testing requirements. DuPont hydrocarbons because of their agent and if the XENERGY technology and the Center for the Polyurethanes flammability and the need also to that Honeywell mentions may be used Industry recommended that EPA create consider impacts of additional flame in all the applications where XPS blown separate SNAP categories for high- retardants on the foam; and the with HFC–134a is currently used. The pressure spray foam systems, low- commercial availability of HFO– information provided by Honeywell pressure foam systems, and one 1234ze(E) and its technical viability. implies that with additional work, XPS component spray foam sealants to allow Honeywell commented that CO2 is an blown with CO2 could be more broadly appropriate change of status dates for option for XPS, and that Dow has available and could result in XPS with each. DuPont suggested that EPA not commercialized other solutions to better foam insulation properties than change the status of HFC–134a in low- improve energy efficiency with CO2 current XPS foam using HFC–134a. pressure two-part spray foam and in such as Dow’s XENERGY technology, Regarding comments suggesting that a one-component foam sealants, because which, according to Dow’s Web site, has status change date of January 2021 is these applications require a gaseous up to 20% higher insulating properties appropriate because it would be foam blowing agent, and not a liquid than its STYROFOAMTM polystyrene consistent with the status change date of agent such as HFC–245fa or HFC– product that uses HFC–134a. XPSA MY 2021 for MVAC, we first note that 365mfc. commented that one of the alternatives the transition for MVAC is required as Response: EPA recognizes that a in the proposed regulations (HFO– of MY 2021, which will be completed in gaseous foam blowing agent is required 1234ze(E)) is commercially sub- calendar year 2020. More importantly, for these uses, unlike for high-pressure optimized, and thus, XPSA’s members the change of status date for each end- two-part spray foam systems, and thus, have not conducted testing to confirm use is based on an evaluation of when there is reason to differentiate between that they can be used to produce alternatives will be available within that low-pressure two-part spray foam products that provide comparable specific end-use. The change of status systems, one-component foam sealants, thermal efficiency or if there are any date for MVAC is not relevant for and high-pressure two-part spray foam. other issues that would make them an purposes of determining when safer We intend to conduct a more extensive unacceptable alternative to HFC–134a. alternatives will be available for the XPS comparative risk analysis of the Dow stated that of the acceptable foam blowing end-use. substitutes available in each of these alternatives that EPA mentioned in the spray foam categories before taking final (b) Foam Blowing Agents Changing NPRM, only HFO–1234ze(E) has action. Thus, the substitutes currently Status and Other Alternatives sufficiently low thermal conductivity listed as acceptable for spray foam are and low permeability to meet industry Comment: Some commenters, not affected by this rule but may be the standards (e.g., ASTM C 578). including commercial refrigeration subject of future rulemaking. Response: Regarding concerns about equipment manufacturers and Comment: Unified Brands and the supply of HFO–1234ze(E), EPA environmental groups, support EPA’s NAFEM commented that water-based notes that since the third quarter of proposal to find higher GWP HFCs blowing agents are environmentally 2014, there has been a plant producing unacceptable in all foam blowing end- friendly, but suffer from poorer HFO–1234ze(E) in commercial uses. Others, including manufacturers of insulation performance and quantities (Honeywell, 2015), and a household appliances and AHAM, vulnerability towards processing smaller plant was providing lots upon advised EPA to reconsider the proposal, temperatures that would consequently request before this. Based on the stating that it unnecessarily accelerates require improved control of fixture information we received, we agree that the transition away from widely used temperatures. Thermo Fisher additional time is required to test and chemicals that still have ‘‘significant commented that water-blown foam improve the quality of XPS produced beneficial uses’’ in the United States could lead to equipment with reduced using alternative foam blowing agents (e.g., HFC–245fa in appliance foam). energy efficiency and negative and for third-party certification testing. Solvay stated that the entire foam environmental impact because of its Thus, it is reasonable to expect up to blowing sector should have been poor insulating properties. three years to complete formulation excluded from the proposal to change Response: It is EPA’s understanding development and to conduct pilot the status of certain HFCs. that water-blown foams offer lower testing, an additional two years to Response: We disagree that this action energy efficiency than foams blown convert the existing plant and test the ‘‘unnecessarily accelerates’’ the with a number of other blowing agents. quality of the final product (with some transition away from chemicals that This is not a barrier to use for foam overlap with the pilot testing period), have significant beneficial use. EPA applications that do not require thermal and a year for certification testing. The applied the SNAP criteria when making insulation or for which increased total time needed is five and a half to determinations on what to include in thickness of the foam is not an issue. six years. Therefore, we are establishing the proposed rule. For the reasons However, thickness of the foam is likely a change of status date of January 1, provided above and in the proposed to be an issue for foams where the 2021, for the XPS end-use. rule, we have determined in most foam dimensions cannot be increased, such as EPA agrees that additional work with blowing end-uses that there are other foams used in refrigerated transport or CO2 as the blowing agent for XPS may alternatives that pose less risk than sometimes in construction foams such be required to provide a better those for which we are changing the as XPS or PU spray foam. performing foam. Available information status. Comment: Mexichem commented that indicates CO2 has a higher thermal Comment: DuPont commented that using hydrocarbons as a blowing agent conductivity than HFC–134a or HFO– the category of Rigid Spray may result in less thermally efficient 1234ze(E), and thus, would be expected Polyurethane foam incorporates several XPS (as compared to use of HFC-134a). to provide lower insulation value in the product sub-categories, including high Unified Brands and NAFEM suggested absence of major changes to the foam pressure spray foam and low pressure there are complications with use of formulation. The information on Dow’s spray foam, each requiring different hydrocarbons in commercial Web site that Honeywell references, foam expansion agent characteristics refrigeration foam, and that ‘‘Pentane

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based blowing agents are strong (c) Environmental and Energy Impacts pentanes in its foam blowing candidates due to their insulation of Foam Blowing Agents application, because the U.S. DOE has performance, but require all foam Comment: A number of commenters established new requirements that do fixtures and processes to be provided comments on the potential not permit pentanes for walk-in panel redeveloped’’ due to flammability. Dow impact of the proposal on greenhouse manufacturers, as they would increase stated that that HC technology is well gas emissions. AHAM state that they the panel thickness size. International understood, and it has been broadly believe the proposed rule is unnecessary Cold Storage, Crown Tonka, and deemed inappropriate for use as a to protect the environment, because the ThermalRite Walk-Ins stated that lower blowing agent for XPS and SPF building use and potential emissions of high R-Values will require additional and construction products in the United GWP HFC blowing agents for household insulation thickness to meet the energy States. Dow also stated that HCs have refrigerators sold in the U.S. market are regulation, thereby requiring expensive, been proactively adopted for use with far less than what EPA estimated. complex, and costly modifications to new walk-in coolers and freezers that polyisocyanurate foams, where they DuPont comments that given that HFCs may be used safely. EIA commented that may sit side-by-side with identical remain in these closed cell foams and hydrocarbons have been used as existing equipment that offers the same provide valuable insulating properties, blowing agents in Europe since 1992, degree of performance and protection. emissions of HFCs from foam including in insulation foams. Response: EPA recognizes that Response: It is EPA’s understanding production are roughly one-third of total different foam blowing agents result in that hydrocarbons such as pentane and HFC use in foams, or about 5% of total different insulation values. We note that isopentane have better thermal HFC emissions on a CO2 equivalent some of the acceptable alternative foam basis. Two commenters in the foam conductivity than CO2, but not as good blowing agents, such as HFO–1234ze(E), as that of HFCs or HFOs. This is not a blowing industry comment that EPA trans-1-chloro-3,3,3,-trifluoroprop-1- barrier to use for foam applications that should consider the greenhouse gas ene, and HFO–1336mzz(Z), are expected do not require thermal insulation or emissions and energy savings over the to provide better insulation value than where increased thickness of the foam is lifetime of a product. the HFC blowing agents listed as acceptable. We also recognize that Response: Some commenters have unacceptable in this action. EPA is not additional safeguards must be taken suggested that because current HFC specifically aware of which, if any, of when using hydrocarbon foam blowing blowing agents, including HFC–134a in these alternatives has been tested by agents, such as improving ventilation, XPS, result in foams with energy Factory Mutual (FM) and already training staff, and explosion-proofing efficiency that reduce overall GHG qualifies as a ‘‘Class 1 polyurethane electrical fixtures. These steps can emissions, EPA should not change the system.’’ Other foam blowing agents are reasonably be taken in a manufacturing status of HFC-134a, or at least should expected to have comparable or lower consider overall lifecycle climate facility but are more difficult for insulation value, such as CO2, ecomate installation in place, as with PU spray impacts. While we do not consider and hydrocarbons. Given the variety of foam. energy efficiency as part of our overall foam blowing agents available, we Comment: Honeywell commented risk analysis, we believe that other expect that foam products that need that in many instances, customers are alternatives, such as olefin foam higher energy efficiency will have foam seeing benefits such as better blowing agents, could improve energy blowing agents available that will result performance, energy efficiency, efficiency even more than HFC–134a in lowering the GHG emissions and nonflammability, and better product and other high GWP HFC blowing energy savings over the lifetime of a yields (less foam for the same agents. Further, as explained below in product. performance) when using 1233zd(E) our discussion of energy efficiency, Comment: A number of commenters (trans-1-chloro-3,3,3-trifluoroprop-1- listing higher GWP HFCs unacceptable stated that they believed the proposed ene). This commenter claimed that this likely would improve, rather than rule will result in increased energy foam blowing agent has been worsen, overall lifecycle GHG consumption, potentially negating the commercial in the United States in emissions. EPA recognizes that overall net GHG emission reductions. spray foam applications for more than a additional time is needed to ensure that One commenter, AMS, believes the year, and in Japan, EU and China for a the formulations provide equal or better effect of the proposed rule on energy variety of foam applications, including thermal insulating value given the consumption is a big unknown at this appliance, panel and spray foam. iterative process that can involve time. Structural Composites and Several users of trans-1-chloro-3,3,3- chemical manufacturers, system houses Compsys, Inc., stated that the efficiency trifluoroprop-1-ene mentioned its and end users. The change of status and reduced manufacturing impact of properties, such as improved dates reflect the need to ensure that their PRISMA technology offsets the compressive strength, lower density, these technical challenges can be climate impacts from the small amount better dimensional stability, and higher addressed. of HFC–134a used in their foam. ACMA R-value (All-Weather Insulated Panels, Comment: Imperial Brown comments stated that composite panels made using West Development Group for spray they cannot know if what is developed foam blown with HFC–134a for foam, UTMC for commercial as an alternative will enable the refrigerated transport dramatically refrigeration foam in refrigerated resulting foam panels to meet DOE reduce fuel usage, and therefore, transport). thickness requirements, because there is exhaust emissions, because the panels Response: Available information not a Class 1 polyurethane foam system are so lightweight. They suggested, indicates that trans-1-chloro-3,3,3- on the market that utilizes a new therefore, that the environmental trifluoroprop-1-ene has many blowing agent. Thermo-Kool comments benefits of a transition away from HFC– performance characteristics, including that new foam formulations are not 134a are outweighed by emissions improved insulation value, that should guaranteed to have insulating reductions achieved through lighter, allow its adoption as a foam blowing capabilities comparable to what is HFC-134a blown panels. Honeywell agent in appliance foam, sandwich available today to satisfy DOE provided information on the relative panels, and some spray foam requirements. American Panel energy efficiency, in terms of lambda applications. Corporation does not intend to use values, for CO2, HFC–134a and HFO–

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1234ze(E), and stated that HFO– (d) Cost Impacts be a sufficient supply of alternatives, we 1234ze(E)’s energy efficiency properties Comment: Commenters express considered this issue in establishing the are comparable and in some instances concern about the costs of the transition change of status dates and believe that better than HFC–134a for XPS. required by the proposal, including: there will be more than adequate Mexichem claimed that HFO–1234ze(E) • capital costs; supplies of alternatives. This will also is not nearly as energy efficient as HFC– • research, reformulation, and testing; contribute to lower costs. We have 134a and stated that it is not clear that • technology and equipment; addressed elsewhere why it is necessary XPS produced with HFO–1234ze(E) will • conversion, system re-design, and to change the status of substitutes for provide the same thermal efficiency as retrofit; the various end-uses based on whether achieved with HFC–134a, because • certification; alternatives that pose lower risk are HFO–1234ze(E) is not available for the • costs for the recreational boating available. Where we concluded that industry to begin product testing. industry; safer alternatives were available, we • DuPont comments that the emerging increasing cost of HFC–134a; determined it was necessary to change • low GWP HFO foam alternatives can increases in costs to consumers; the status. Thus, we disagree with the deliver marked energy efficiency • market competitiveness impacts; • commenters who suggest that it is not improvements over current alternatives reduction in new product necessary to change the status of various when they become commercially development; HFC foam blowing agents. available. • retesting required due to lack of Response: EPA notes that some of the coordination with timing of VI. What is EPA finalizing for the acceptable alternative foam blowing requirements for DOE energy HCFCs addressed in this rule? agents, such as HFO–1234ze(E), trans-1- conservation standards; chloro-3,3,3,-trifluoroprop-1-ene, and • economic impacts on branding; A. What did EPA propose for HCFCs HFO-1336mzz(Z), can provide better • cost savings; and and what is being finalized in this rule? insulation value than the HFC blowing • other general economic concerns. In the August 6, 2014 NPRM, EPA agents we are listing as unacceptable. Some commenters, such as proposed to change the listings from Contrary to Mexichem’s unsupported Mexichem, Solvay, and AHAM, acceptable to unacceptable for three assertion that HFO–1234ze(E) is not suggested that it was not necessary to HCFCs: HCFC–141b, HCFC–142b, and nearly as energy efficient as HFC–134a, change the status of HFC–134a and HCFC–22 (79 FR 46155). As discussed another commenter provided other HFC foam blowing agents or to information showing that HFC–134a has require industry to incur the costs that in the proposed rule, EPA proposed to a lambda (thermal conductivity) value these changes require. Other modify the listings for these three of 29 to 30, while HFO–1234ze(E) has a commenters, such as NMMA, NAFEM, HCFCs and blends containing these lambda value of 27 to 30 that shows XPSA, and their members, requested HCFCs to align the SNAP listings with better insulation (Honeywell, 2014b). additional time for the change of status other parts of the stratospheric Other foam blowing agents have of HFC–134a and other HFC foam protection program, specifically section comparable or lower insulation value, blowing agents in order to allow them 605 and its implementing regulations at 40 CFR part 82 subpart A and section such as CO2, ecomate and hydrocarbons. to spread costs out over time and thus Given that there are multiple foam make costs of the transition more 610 and its implementing regulations at blowing agents available that have lower manageable. Imperial Brown suggested a 40 CFR part 82 subpart C. HCFCs are thermal conductivity and better later status change date to allow foam subject to the use restrictions in CAA insulation value in each of the end-uses manufacturers to create sufficient section 605(a) and these specific HCFCs where we are changing the status of one supply, thereby alleviating a potential have been restricted under EPA’s or more foam-blowing agent, we expect cost premium associated with scarcity implementing regulations at 40 CFR part that foam products that require higher of newer alternatives. 82 subpart A since January 1, 2010. energy efficiency will be able to use Response: EPA recognizes that Additionally, the nonessential products foam blowing agents that will result in transitioning to new foam blowing ban under CAA section 610 restricts sale lowering the GHG emissions and energy agents is likely to require capital costs and distribution of certain products savings over the lifetime of a product, and investments in research, updated containing or manufactured with these rather than raising it. For example, equipment, and related financial three HCFCs. We believe it is important home appliances that currently use impacts. However, as explained in more that the SNAP listings not indicate that HFC–245fa could use trans-1-chloro- detail in another response to comment, these HCFCs may be used when another 3,3,3,-trifluoroprop-1-ene or HFO– under the SNAP criteria for review in 40 program under title VI of the CAA 1336mzz(Z) and thereby ensure they CFR 82.180(a)(7), the only cost would prevent such use. Thus, we are meet DOE energy conservation information that EPA considers as part aligning the requirements. The HCFCs standards. Similarly, information from of its SNAP review is the cost of the addressed in this rule were previously the supplier of HFO–1234ze(E) indicates substitute under review (and not the listed as acceptable or acceptable that XPS would maintain or improve its cost of transition when a substitute is subject to use conditions in the aerosols, energy efficiency if HFO–1234ze(E) found unacceptable). foam blowing, fire suppression and were used instead of HFC–134a as the Although cost is not a consideration explosion protection, sterilants, and blowing agent. Manufacturers of in our decision to change the status of adhesives, coatings and inks sectors. For alternative panels or composite certain substitutes, we note that based more information, please refer to the materials have not provided information on technical concerns, the final rule relevant section of the proposed rule as showing that use of an alternative establishes a later change of status date noted above. The change of status blowing agent would adversely affect in a number of end-uses, which will determinations for the HCFCs addressed the weight of foam formulations and allow manufacturers to spread costs in this rule are summarized in the thereby reduce fuel efficiency. over time. Regarding whether there will following table:

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TABLE 9—CHANGE OF STATUS DECISIONS FOR HCFCS ADDRESSED IN THIS RULE

Sector and end-use Substitutes Decision

Aerosols—Propellants ...... HCFC–22 and HCFC–142b ...... Unacceptable effective [DATE 60 DAYS AFTER PUBLICATION OF FINAL RULE] Aerosols—Solvents ...... HCFC–141b and blends thereof ...... Unacceptable effective [DATE 60 DAYS AFTER PUBLICATION OF FINAL RULE] Foams—All end-uses ...... HCFC–141b, HCFC–142b, HCFC–22, and blends Unacceptable effective [DATE 60 thereof DAYS AFTER PUBLICATION OF FINAL RULE] Fire suppression—Total flooding ...... HCFC–22 ...... Unacceptable effective [DATE 60 DAYS AFTER PUBLICATION OF FINAL RULE] Sterilants ...... Blends containing HCFC–22 ...... Unacceptable effective [DATE 60 DAYS AFTER PUBLICATION OF FINAL RULE] Adhesives, coatings, and inks—All end-uses ...... HCFC–141b and blends thereof ...... Unacceptable effective [DATE 60 DAYS AFTER PUBLICATION OF FINAL RULE]

Consistent with the proposal, in blowing agents listed as unacceptable, with a limited exemption for use in today’s final rule, EPA is modifying the as well as applying to the blowing agent space vehicle, nuclear, and defense listings for HCFC–141b, HCFC–142b, itself. applications, as well as for research and and HCFC–22, as well as blends that Response: As explained in section development for foreign customers (see contain these substances, from V.D.2.c, above, EPA is not finalizing the 69 FR 58269). Under the HCFC phaseout acceptable to unacceptable 90 in non- proposed change to the import of closed program, EPA stopped the production refrigerant sectors—specifically, cell foam products blown with an agent and import of HCFC–141b for use in aerosols, foam blowing agents, fire listed as unacceptable. We also foams in 2003 (40 CFR 82.16(b)) and suppressants, cleaning solvents, explained that we plan to continue prohibited its use as of January 1, 2010, sterilants, and adhesives, coatings and assessing the merits of this change and with limited exceptions (40 CFR inks. may provide further explanation and 82.15(g)). All remaining exemptions for As provided in the proposal, EPA is opportunity for comment in a the use of HCFC–141b ended on January not addressing HCFC use for subsequent rulemaking. Thus, as of the 1, 2015. Therefore, this current rule refrigeration and air conditioning in this time of the status change, foam blowing does not affect the use of HCFC–141b to rulemaking because CAA section 605(a) agents containing HCFC–141b, –142b, blow foam in the United States; it only and our implementing regulations allow and –22 and blends are prohibited from ensures the SNAP list is aligned with for continuing use of HCFCs to service being used or imported into the United other existing regulations under Title VI equipment. Recognizing that other States, but foam products or products of the CAA. HCFCs became subject to the use and containing foam made with these If the commenter is referring to interstate commerce prohibitions in 40 agents, such as appliances or furniture, applying the unacceptability CFR 82.15(g) after issuance of the may still be imported. determination for HCFC–141b to proposed rule, and that limited Comment: Hussmann Corporation products containing HCFC–141b, as exemptions are available in section asked for four years from the issuance discussed above in this section, EPA is 82.15(g) for certain of those HCFCs, EPA of the final rule to make any changes to not finalizing the proposed change to is not modifying the SNAP listings for the acceptability of HCFC–141b in foam the import of closed cell foam products HCFCs other than HCFC–141b, –142b, blowing applications, stating that blown with an agent listed as and –22 and blends containing those considerable time is needed to review unacceptable. substances at this time. EPA may revisit what impact new foam has to structural the acceptability of other HCFCs in a integrity and product efficiency. The VII. How is EPA responding to other later rulemaking as appropriate. We are commenter stated that this timing public comments? finalizing the proposal that the listings would would allow manufacturers to A. Authority be modified 60 days following issuance make a transition to new products while of a final rule. remaining within the EPA’s new HCFC 1. General Authority B. How is EPA responding to public allocation rule (which will completely Comment: The Agency received comments concerning HCFCs? phase out HCFC refrigerants in five several comments, including those from years). Solvay, Arkema, AHAM, BASF, Comment: EPA received a few Response: EPA would like to clarify Mexichem, NRDC and IGSD, Whirlpool, comments on the proposed that anyone still using HCFC–141b to and Bally Refrigerated Boxes on its modifications affecting HCFCs, blow foam in the United States is likely authority to change the status of HFC– primarily on whether the out of compliance with longstanding 134a and other substitutes that were unacceptability determination should regulations promulgated under the addressed in the proposed rule. NRDC apply to imported products containing SNAP program (CAA section 612), as and IGSD asserted that under section closed cell foam that contain any of the well as the HCFC phaseout (CAA 612 of the CAA ((42 U.S.C. 7671k), EPA section 605). Under SNAP, HCFC–141b has the authority—if not the affirmative 90 These three HCFCs have previously been listed as unacceptable in several, but not all, SNAP was listed as unacceptable effective on mandate—to remove the proposed sectors. November 29, 2004, for all foam uses, substances from the SNAP list of

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acceptable substitutes. They quoted Several commenters also asserted that same end-use, and to prohibit the use of from section 612(a), emphasizing that nothing has happened with respect to those substitutes found, based on the replacement of ODS with substitutes any attribute or impact of the HFCs same comparisons, to increase overall that reduce overall risk is to occur ‘‘to addressed in this rulemaking that would risks [emphasis added]’’ (59 FR 13044, the maximum extent practicable’’ (42 warrant a change in the initial decisions Mar. 18, 1994; 40 CFR 82.170). In U.S.C. 7671k(a)). They stated that under to list HFCs as acceptable. addition, Arkema’s reference to a single section 612(c)(2), EPA has authority to Response: EPA agrees with NRDC and document containing language decide which substances may and may IGSD’s conclusion that the Agency has mentioning a substitute-to-ODS not be used in the SNAP sectors. authority to take the change of status comparison ignores the large number of Finally, they asserted that in speaking of actions included in the proposed risk screens that EPA has prepared over both alternatives ‘‘currently’’ available, rulemaking and disagrees with the years that compare the ODP and and those that are ‘‘potentially’’ comments suggesting that the sole GWP, and other environmental and available, Congress recognized that the purpose of section 612 and the SNAP health attributes, of substitutes to those universe of alternatives will evolve over program is to safeguard the ozone layer. of other substitutes, as well to those of time, so that as additional alternatives Section 612(c) requires EPA to take ODS (e.g., risk screens in the following become available, EPA has an obligation action when the Agency (1) determines dockets: EPA–HQ–OAR–2013–0798 and to revise the SNAP list to ensure that the that a substitute may present adverse EPA–HQ–OAR–2003–0118.) Further, substances included will minimize effects to human health and the EPA’s listings over the years have ‘‘overall risks to human health and the environment, and (2) identifies an included comparisons of substitutes to environment’’ (42 U.S.C. 7671k(c)). alternative that reduces overall risk to other available alternatives in the same In contrast, Mexichem, Solvay, human health and the environment and end-uses (e.g., 67 FR 13272, 67 FR AHAM/Electrolux and Arkema asserted is currently or potentially available. 77927, 68 FR 50533, 69 FR 58903, 71 FR that the proposed actions were outside That provision makes clear that the 15589, 71 FR 55140, 71 FR 56359, 74 FR the scope of Title VI, section 612 of the mandate of section 612 is to reduce 21, 74 FR 50129, 75 FR 34017, 76 FR overall risk; it does not limit the risks CAA, and EPA’s SNAP regulations. 17488, 76 FR 61269, 76 FR 78832, 77 FR of concern to those associated with Specifically, these commenters asserted 47768, 77 FR 58035, 78 FR 29034, 79 FR ozone depletion. In addition, while that Congress and EPA designed the 62863). The substitute-to-substitute section 612 refers repeatedly to class I SNAP program to safeguard comparison is essential to fulfilling and class II substances, it also refers stratospheric ozone, and not to address EPA’s obligation under section 612(c) to repeatedly to substitutes or alternatives, climate change and greenhouse gases. determine whether there are alternatives requiring specific actions with regard to AHAM stated that Title VI of the CAA that reduce overall risk as compared such substances. with the substitute under review. does not provide EPA broad authority to EPA cannot fulfill its section 612(c) To the extent possible, the Agency has regulate refrigerants, foams and mandate to compare alternatives with a always sought to ensure that our SNAP chemicals in circumstances unrelated to view to reducing overall risk without decisions are informed by the most ozone depletion. Mexichem stated that considering impacts related to issues current overall understanding of the repeated references in section 612 to other than ozone depletion. Toward that environmental and human health class I and class II substances end, the SNAP regulations require impacts associated with available and demonstrate that Congress was submitters to include information on a potentially available alternatives. In that concerned with ODS. wide range of factors in addition to regard, the Agency has, since the Several commenters emphasized ODP, including GWP, toxicity, inception of the SNAP program, evaluation of a substitute in relation to flammability, and the potential for asserted its authority, consistent with ODS. Mexichem asserted that EPA human exposure (59 FR 13044, Mar. 18, the language of section 612(c) and the recognized ‘‘the limited nature of the 1994 and codified at 40 CFR 82.178). section’s statement of congressional statute’’ in 1994 when it promulgated Further, the SNAP regulations state that policy, to review substitutes listed as the statement of purpose and scope for EPA will consider atmospheric effects acceptable and to take action with the SNAP program (59 FR 13044, Mar. (including GWP), exposure assessments, respect to those substitutes on the basis 18, 1994; 40 CFR 82.170). In its toxicity data, flammability, and other either of new information generally, comment, Mexichem provided a environmental impacts such as including that related to overall risk, or quotation from the statement of purpose ecotoxicity and local air quality impacts of the availability of new alternatives and scope, suggesting that substitutes (59 FR 13044, Mar. 18, 1994; 40 CFR that pose less overall risk. Specifically, are to be compared only to ODS. 82.180). in the preamble to the initial SNAP rule, Arkema quoted an EPA ‘‘Guide to In addition, while section 612(a) EPA made clear that ‘‘the Agency may Completing a Risk Screen’’ 91 for the fire states the Congressional policy of revise these [listing] decisions in the suppression sector as explaining that reducing overall risk in broad terms, future as it reviews additional environmental effects would be section 612(c) specifically requires EPA substitutes and receives more data on evaluated by comparing the substitute’s to compare the risk of the substitute substitutes already covered by the GWP to the GWP of the ODS it replaces. under review to other substitutes or program’’ (59 FR 13044, 13047). We Solvay contended that changing the alternatives. In that regard, Mexichem’s interpret section 612 as allowing both listing status of a previously approved comment omits a crucial phrase in the addition of new, safer alternatives to the substitute would eliminate the user’s statement of ‘‘purpose and scope’’ in the listings and removal from the listings of ability to use a substance that met the SNAP regulations. The complete substitutes found to pose more risk statutory objective of providing better statement reads: ‘‘The objectives of this overall than other available alternatives. overall health and safety in comparison program are . . . to promote the use of With regard to additional data on to the use of an ODS in a specific end- those substitutes believed to present substitutes already covered by the use. lower overall risks to human health and program, the Agency has previously the environment, relative to the class I responded to the evolution of scientific 91 http://www.epa.gov/ozone/snap/fire/ and class II compounds being replaced, and technical information by revisiting riskscreenfire.pdf as well as to other substitutes for the the listing status of a substitute. For

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example, on the basis of new 2. Second Generation Substitutes replacements in the common-sense information on toxicity, EPA took action Comment: Several comments focused meaning of those words. in January of 2002 to change the listing on the term ‘‘replace’’ in section 612(c), Arkema further stated that EPA for HBFC-22B1 from acceptable, subject suggesting that once a company has should be precluded from comparing to use conditions to unacceptable (67 FR switched to a non-ODS alternative, it is non-ODS first-generation alternatives 4185, January 29, 2002; 40 CFR 82 no longer ‘‘replacing’’ a Class I or Class (such as HFC–134a) to second- subpart G, appendix J). II ODS in its products, and that it is generation non-ODS alternatives (such as HFO–1234yf, HFC–152a, and R–744). With regard to additional alternatives, unsupportable to read ‘‘replacement’’ as a continuous process rather than as a Arkema contended that none of these the suite of available or potentially second-generation compounds is a available alternatives changes over time. single event. Solvay stated that the proposed rule would require users that ‘‘substitute’’ for SNAP purposes. For example, over the past several years, have already ‘‘replaced’’ ODS with non- Response: In this rulemaking, the and as standards and familiarity with ODS to make a second replacement, and Agency is revising the listing status of the safe use of various alternatives has that EPA lacks authority to require this substitutes that are direct replacements developed, EPA has listed several second replacement. Arkema stated that for ODS. Arkema admits as much on specific flammable refrigerants as the statutory terms ‘‘replace’’ and p. 8 of their comment letter, where they acceptable for some end-uses subject to ‘‘replacement’’ must be given their describe HFC-134a as a ‘‘first generation use conditions (e.g., 76 FR 78832, ordinary meanings, and that to replace refrigerant substitute.’’ While we are not December 20, 2011; 40 CFR 82 subpart an ODS means to take the place of an exploring the full scope of the ‘‘first G appendix R; 80 FR 19453, April 10, ODS. Arkema further noted that EPA generation’’ concept in this action, there 2015). Most of these refrigerants (e.g., defines a ‘‘substitute or alternative’’ in is no question that HFC–134a directly ethane, propane, isobutane, HFC–32) are its SNAP regulations as something replaced ODS in the relevant sectors. not new molecules; rather, their recent ‘‘intended for use as a replacement for’’ For example, with respect to foam listing as acceptable subject to use an ODS (59 FR 13044, Mar. 18, 1994 and blowing, when HFC–134a was listed as conditions is based on an increased 40 CFR 82.172). Arkema concluded that acceptable in foam blowing understanding of their ability to be used Congress and EPA designed the SNAP applications, foam was still being blown in a manner that would reduce overall program to regulate things taking the with HCFCs (59 FR 13044, March 18, risk. The availability of those place of ODS, not to replace substances 1994; 64 FR 30410, June 8, 1999). In this alternatives enables a broader review of with no ozone depletion potential. action, we are not addressing the extent comparative risk under section 612(c). Arkema contended that EPA has of EPA’s authority to revise the listings interpreted the statute and regulations of alternatives that are arguably indirect Further, we disagree with the notion as excluding non-ODS. In support of replacements for ODS, sometimes that our understanding of the impact of this argument, Arkema quoted the termed ‘‘second-generation HFCs has remained static. Our preamble to the initial SNAP rule as alternatives.’’ understanding of the impact that HFCs saying that ‘‘a key issue’’ was ‘‘whether EPA does not agree with the have on climate has evolved and there exists a point at which an commenters who suggest that while become much deeper over the years. As alternative should no longer be HFC–134a may have replaced ODS at mentioned elsewhere in this considered a class I or class II substitute one point in time, it no longer does so. rulemaking, a significant indication of as defined by 612’’ (59 FR 13044, The term ‘‘replace’’ is not defined in that change can be seen in EPA’s 13052). The commenter further quoted section 612, EPA therefore interprets December 7, 2009, Endangerment the preamble to that rule as saying that this term as it is commonly used. Finding (74 FR 66496, 66517, 66539) ‘‘if a hydrofluorocarbon (HFC) is Dictionary definitions can provide which makes clear that like the ODS introduced as a first-generation insight into how a reasonable or they replace, HFCs are potent GHGs. In refrigerant substitute for [an ODS], it is ordinary person would interpret the addition, HFCs are now in widespread subject to review and listing under term. Dictionary definitions of ‘‘replace’’ usage. The most commonly used HFC is section 612. Future substitutions to include the following: ‘‘to be used HFC–134a. HFC–134a is 1,430 times replace the HFC would then be exempt instead of’’ 95 ‘‘to take the place of,’’ 96 more damaging to the climate system from reporting under and ‘‘to provide a substitute or than carbon dioxide (see Table A–1 to section 612 . . . .’’ (id.). In addition, equivalent for.’’ 97 None of these subpart A of 40 CFR part 98). Further, Arkema quoted a 1996 petition definitions suggests that something used HFC emissions are projected to response 93 as stating that EPA does not ‘‘instead of’’ or ‘‘to take the place’’ of accelerate over the next several decades; review substitutes for non-ozone- something else ceases to ‘‘replace’’ it if left unregulated, emissions are depleting substances such as HFC–134a. simply due to the passage of time. Nor projected to double by 2020 and triple Arkema also quoted the SNAP does the Agency view the replacement 94 by 2030.92 Additional information Instruction Manual as instructing of a ODS with a substitute (e.g., HFC– concerning the peer-reviewed scientific applicants to specify the ODS being 134a) as limited to the first time a replaced. literature and emission scenarios related product manufacturer uses the AHAM commented that the appliance substitute. Indeed, in the preamble to to HFCs is available in the docket for industry no longer intends HFCs as a the initial SNAP rule, we interpreted the this rulemaking (e.g., Akerman, 2013; substitute or replacement for ODS. The term ‘‘replace’’ to apply ‘‘each time a EPA, 2013b and 2014; IPCC, 2007 and commenter stated that there are very substitute is used.’’ (59 FR 13044, 2013; IPCC/TEAP 2005; Montzka, 2012; few remaining models that ever used 13047). We noted that ‘‘[u]nder any Velders et al., 2009). This information ODS, and that the substances used in other interpretation, EPA could never was taken into account in this today’s models are not substitutes or rulemaking. 95 Merriam-Webster, http://www.merriam- 93 Response to Oz Technology’s Petition (Aug 30, webster.com/dictionary/replace. 92 Climate Change and President Obama’s Action 1996). 96 Collins, www.collinsdictionary.com/dictionary/ Plan. June, 2013. Available in the docket and online 94 www.epa.gov/ozone/snap/submit/ american/replace. at www.whitehouse.gov/share/climate-action-plan. appguide.pdf. 97 Id.

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effectively prohibit the use of any instead occurs repeatedly within a given action on the basis of GWP. Specifically, substitute, as some user could always end-use or sector. Solvay and Mexichem stated that while start to use it prior to EPA’s completion Contrary to Solvay’s comment, EPA section 602 of the CAA requires EPA to of the rulemaking required to list it as has authority to regulate the continuing publish the GWP of each listed class I unacceptable’’ (Id.). Thus, the fact that replacement of ODS with HFC–134a and and class II substance, the Agency’s HFC–134a is already in use as a the other substitutes whose listing status authority is limited by the language replacement for ODS does not mean that is addressed in this action. In this stating that it ‘‘shall not be construed to its future use is any less of a rulemaking, EPA considered whether be the basis of any additional regulation replacement. In context, the language such replacement should continue to under this chapter.’’ Solvay stated that that Arkema quotes (‘‘whether there occur given the expanded suite of other this language expresses Congress’s exists a point at which an alternative alternatives to ODS in the relevant end- intent that no provision of Title VI— should no longer be considered a class uses and our evolving understanding of including, but not limited to, § 602, I or II substitute’’) does not suggest that risks to the environment and public § 608, § 612, and § 615—provides a substance that directly replaces the health. The commenter’s line of statutory authority for the Agency to ODS might somehow cease to qualify as reasoning would undermine EPA’s implement an overarching program an ODS substitute. Rather, it raises the ability to comply with the statutory under which it can force users to cease question of whether a substance that scheme reflected in section 612(c), using substances with global warming, indirectly replaces the ODS might fail to under which EPA’s authority to prohibit but not ozone-depleting, potentials. qualify. That question is not addressed use of a substitute is tied to information Mexichem commented that if GWPs of in this rulemaking because this on overall risk and the availability of listed compounds cannot be the basis of rulemaking addresses only substances substitutes. further regulation under Title VI, it that are direct replacements for ODS in Regarding Arkema’s suggestion that follows that regulation based on the relevant sectors. HFO–1234yf, HFC–152a, and R–744 are comparisons of GWPs of both listed Similarly, the mere passage of time not ‘‘substitutes’’ for SNAP purposes substances and unlisted alternatives was does not mean that the substances and thus they cannot be used as part of intended by Congress equally to be addressed in this rulemaking have a review of whether EPA should change foreclosed. Commenters asserted that somehow ceased to be ‘‘substitutes or the status of HFC–134a, we disagree. EPA inappropriately used the physical alternatives’’ under the regulatory HFO–1234yf, HFC–152a and R–744 (as characteristic of GWP as a surrogate for definition at 40 CFR 82.172. No well as the other substances we used for risk; failed to assess the significance to commenter suggests that at the time of comparison purposes in this climate change of the emissions their initial SNAP listing these rulemaking) 99 are currently listed as reductions estimated to be brought about by the action as they relate to risk substances were anything other than acceptable or acceptable, subject to use for each substance in each sector ‘‘chemicals . . . intended for use as a conditions under SNAP. Thus, we have covered; failed to assess and account for replacement for a class I or II separately taken action to treat these indirect climate impacts; and failed to compound.’’ Rather, commenters assert substances as substitutes for the apply its customary tests for that these substances are no longer purposes of section 612(c) and the consideration of atmospheric effects. intended for use as an ODS corresponding regulatory provisions. We are not re-examining in this BASF commented that EPA proposed replacement. However, introducing a to find HFCs unacceptable because they rulemaking whether the substances used temporal aspect into this definition have ‘‘high GWPs as compared with for comparison purposes in this action would mean that a product other available or potentially available qualify as substitutes. Rather, in this manufacturer could make an initial substitutes in those end-uses and pose rule, we are making listing substitution for a class I or II substance significantly greater overall risk to determinations for substances that are 90 days after providing the required human health and the environment.’’ direct substitutes for ODS based on their notification to EPA and thereafter BASF noted that while CAA section 612 overall risk compared to these other continue to use the substitute while does require an assessment of risk, it alternatives. disclaiming any intent to replace the does not explain how that assessment ODS. This is not a supportable 3. GWP Considerations should be done. BASF added that interpretation because it would allow whatever that assessment should Comment: The Agency received the manufacturer to circumvent SNAP involve, it is possible that Congress did several comments relating to EPA’s requirements simply by beginning to not intend GWP to be part of that authority to consider GWP in its use a substitute prior to its SNAP assessment. listing. comparative risk evaluation, and to take Response: As noted by some In addition, EPA implements the commenters, section 602 of the CAA 99 We note that the requirement under section 612 section 612(c) mandate to list does not limit our analysis of whether there are calls on EPA to publish the GWP for substances as acceptable or ‘‘safer’’ alternatives only to ‘‘substitutes’’ listed each class I or class II substance, but unacceptable ‘‘for specific uses’’ by under the SNAP program. Rather section 612(c) goes on to say that this mandate ‘‘shall listing substitutes on an end-use or refers to ‘‘alternatives’’ that are currently or not be construed to be the basis of any 98 potentially available. Thus, in instances where we sector basis. Similarly, the Agency are aware of other alternatives that may not have additional regulation under this views transition as occurring on an end- completed SNAP review and we have sufficient chapter.’’ Consistent with this use by end-use or sector-by-sector basis, information for those alternatives relative to the provision, we are not relying on section not—as one commenter suggests—on a SNAP review criteria, we may include those 602 as authority for the action being alternatives in our comparative analysis. In this model-by-model basis. Thus, the act of action, for purposes of the refrigeration end-uses, taken in this rulemaking. Rather, we are ‘‘replacing’’ is not limited to the we included in our comparative analysis several relying on section 612, which redesign of a particular model, or the substances we were concurrently reviewing under specifically provides that EPA is introduction of a new model, but SNAP and which we have taken action to list as required to list a substance as acceptable, subject to use conditions (April 10, 2015, 80 FR 19453) and for which we are taking unacceptable if it ‘‘may present adverse 98 This is reflected in the appendices to 40 CFR action concurrently with this rule to list as effects to human health or the part 82, subpart G. acceptable. environment’’ where EPA has identified

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alternatives that are currently or listed for household refrigeration (76 FR CAA and the Montreal Protocol. Solvay potentially available and that ‘‘reduce 78832, December 20, 2011). quoted the Supreme Court case Lucas v. the overall risk to human health and the In response to comments that EPA South Carolina Coastal Council as environment.’’ inappropriately used the physical saying that ‘‘any limitation [that Considerations of atmospheric effects characteristic of GWP as a surrogate for prohibits all economically beneficial and related health and environmental risk and that EPA failed to assess the uses of real property] . . . cannot be impacts have always been a part of significance to climate change of the newly legislated or decreed (without SNAP’s comparative review process, emissions reductions estimated to be compensation), but must inhere in the and the provision of GWP-related brought about by the action, as they title itself, in the restriction that information is required by the SNAP relate to risk for each substance in each background principles of the State’s law regulations (see 40 CFR 82.178 and sector covered, we note that GWP is a of property and nuisance already place 82.180). The issue of EPA’s authority to relative measure and that if comparable upon land ownership’’ (505 U.S. 1003, consider GWP in its SNAP listing amounts of two substitutes are used, 1029 (1992)). decisions was raised in the initial rule then the relative climate effects of Response: The first question in a establishing the SNAP program. In the resultant emissions will be higher for takings analysis is whether there is a preamble to the final 1994 SNAP rule, the substitute with higher GWP. EPA property interest protected by the Fifth EPA stated: ‘‘The Agency believes that considers factors such as charge size of Amendment. The commenter does not the Congressional mandate to evaluate refrigeration equipment and total identify the property interest that is the substitutes based on reducing overall estimates of production in its subject of the alleged ‘‘taking.’’ While risk to human health and the assessment of environmental and health the commenter cites a case involving environment authorizes use of global risks of new alternatives, so we can real property, no real property is at stake warming as one of the SNAP evaluation consider if there would be substantial here. To the extent the commenter has criteria. Public comment failed to differences that might affect total a property interest in the HFCs it identify any definition of overall risk atmospheric emissions. We believe that imports or produces, such interest that warranted excluding global we have appropriately considered GWP would be limited to quantities already warming’’ (59 FR 13044, March 18, as a metric for comparing climate effects in existence, and not those that might be 1994). of substitutes. produced or imported in the future. In In response to comments that EPA any event, EPA’s change in the listing Consistent with that understanding, failed to assess and account for indirect status of HFCs does not effectuate a the 1994 SNAP rule specifically climate impacts, we note that we do not taking. First, EPA’s action does not included ‘‘atmospheric effects and have a practice in the SNAP program of ‘‘completely deprive’’ the commenter of related health and environmental including indirect climate impacts in ‘‘all economically beneficial us[e]’’ of impacts’’ as evaluation criteria the the overall risk analysis. We do consider the HFCs it produces or imports. See Agency uses in undertaking issues such as technical needs for Lingle v. Chevron, 544 U.S. 528, 538 comparative risk assessments (59 FR energy efficiency (e.g., to meet DOE (2005), quoting Lucas v. South Carolina 13044, March 18, 1994; 40 CFR standards) in determining whether Coastal Council, 505 U.S. 1003, 1019 82.180(a)(7)(i)). That rule also alternatives are ‘‘available,’’ and have (1992). EPA is not listing all HFCs as established the requirement that anyone followed that practice in this unacceptable in all end-uses; rather, submitting a notice of intent to rulemaking. We believe that there is a EPA is listing certain HFCs as introduce a substitute into interstate sufficient range of acceptable unacceptable in specified end-uses. In commerce provide the substitute’s GWP alternatives that end users will be able addition, EPA is adopting change of (see 40 CFR 82.178(a)(6)). Accordingly, to maintain energy efficiency levels We status dates that provide ample time for we have considered the relative GWP of also note that federal energy HFCs already in existence to be sold. alternatives in many SNAP listing conservation standards will continue to Thus, some ‘‘economically beneficial decisions. For example, in the decision ensure that equipment regulated by this use’’ of the HFCs remains. In such to list C7-Fluoroketone as acceptable we rule will not increase its indirect situations, courts typically consider noted that ‘‘C7 Fluoroketone’s GWP of climate impacts. See in particular several factors in determining whether a about 1 is lower than or comparable to section V.C.7 for a discussion on energy regulatory taking has occurred. Those that of other non-ozone-depleting efficiency for commercial refrigeration factors include ‘‘the character of the substitutes in heat transfer uses, such as products and section V.D.3.c for a governmental action, its economic HFE-7100 with GWP of 297, HFC–245fa response to comments on energy impact, and its interference with with a GWP of 1030, and CO2 with a efficiency of foams. reasonable investment-backed GWP of 1’’ (77 FR 47768, August 10, In this action, EPA used the same expectations.’’ PruneYard Shopping 2012). In that same action, EPA also comparative risk approach it has used in Center v. Robbins, 447 U.S. 74, 83 considered ODP, VOC status, the past, including the consideration of (1980). flammability, toxicity and exposure, GWP. Here, the change in the listing status concluding that ‘‘EPA finds C7 of certain HFCs for specified end-uses is Fluoroketone acceptable in the end-use 4. Takings designed to ‘‘promote the common listed above because the overall Comment: Solvay asserted that the good’’ (see Penn Central Transportation environmental and human health risk delisting of already approved Co. v. New York City, 438 U.S. 104, 124 posed by C7 Fluoroketone is lower than alternatives constitutes a taking in (1978)). The alternatives to which EPA or comparable to the risks posed by violation of the Fifth Amendment to the compared these HFCs in this action other substitutes found acceptable in the U.S. Constitution. Solvay commented were found to pose less overall risk to same end-use’’ (id). Similarly, in finding that the delisting would effectuate a human health and the environment in the use of isobutane and R–441 regulatory taking for which the United the specified end-uses. Thus, removing acceptable subject to use conditions in States would owe ‘‘just compensation’’ these HFCs from the list of acceptable household refrigeration, we included to regulated parties, including Solvay, substitutes for these end-uses provides a an-in depth discussion of the relative that have made significant investments public benefit. Regarding the economic GWP of these and other alternatives in furtherance of U.S. policies under the impact of this action, EPA recognizes

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that the impact will vary for the progress, rather than impede it. Five substances on its own initiative. Solvay different end-uses. For example, for commenters commented on the commented that to the extent it does, some foam blowing agent end-uses, perceived inconsistency of the proposed EPA has the burden, standing in the transitioning to other alternatives is timeline and the proposed amendments shoes of a petitioner, to demonstrate likely to require capital costs and to the Montreal Protocol to adopt a that it has data adequate to support the investments in research, updated gradual phase down of HFCs. petition. equipment, and their related financial Response: EPA agrees that the Response: The Agency disagrees with impacts. In comparison, for some Montreal Protocol does not currently the commenter regarding EPA’s aerosol propellant uses and some regulate HFCs. Nevertheless, several authority to independently review and, refrigeration end-uses, depending on the sections of Title VI call on EPA to take where appropriate, change the status of alternative selected, there may be little measures that are not required by the substitutes under the SNAP program. In or no need for capital costs or research. Montreal Protocol but are the preamble to the initial SNAP rule, However, EPA notes that chemical complementary to the ODS phaseout. the Agency stated that ‘‘section 612 producers have been investing in low- These sections include, in addition to authorizes it to initiate changes to the GWP alternatives for years, and many section 612, sections 608 (national SNAP determinations independent of have either submitted SNAP emissions reduction program), 610 any petitions or notifications received. notifications or expressed interest in (nonessential products), and 611 These amendments can be based on new submitting SNAP notifications (labeling). In addition, while HFCs are data on either additional substitutes or concerning new molecules and blends not a Class I or Class II substance under on characteristics of substitutes of existing molecules. the Clean Air Act, HFCs are substitutes previously reviewed’’ (59 FR 13044, The commenter could not have had a for Class I and Class II ODS, and section 13047). Nothing in section 612(c) reasonable investment-backed 612 and its implementing regulations contravenes this interpretation. The expectation that these HFCs would specifically call on the agency to restrict existence of section 612(d), which continue to be listed as acceptable substitutes for ODS where the Agency provides a right for persons to petition indefinitely in all end-uses, or in any has identified other available or the Agency to revise a listing, does not specific end-use, because EPA expressly potentially available alternatives that address in any manner whether EPA has stated in the preamble to the initial reduce overall risk to human health and authority to change a listing on its own. SNAP rule that ‘‘the Agency may revise the environment. Furthermore, section 612(c) requires these [listing] decisions in the future as The CAP considers both domestic and EPA to take action when the Agency (1) it reviews additional substitutes and multilateral action to address HFCs. The determines that a substitute may present receives more data on substitutes United States co-proposed and is adverse effects to human health and the already covered by the program’’ (59 FR strongly advocating for an amendment environment, and (2) identifies an 13044, 13047). In addition, EPA also to the Montreal Protocol to phase down alternative that reduces overall risk to noted the ‘‘significant global warming production and consumption of HFCs. human health and the environment and potentials’’ of some HFCs and stated EPA sees no conflict between the United is currently or potentially available. ‘‘EPA is concerned that rapid expansion States’ strong support for a global phase- Section 612(c) does not limit such EPA of the use of some HFCs could down and this domestic action. The determinations to initial review of contribute to global warming’’ (id. at amendment proposal calls for a phase- substitutes. 13,071). EPA characterized HFCs as a down of production and consumption of For petitions under section 612(d), the ‘‘near-term option for moving away from a group of HFCs, including HFC–134a as petition must ‘‘include a showing . . . CFCs,’’ not as a long-term solution. well as HFC–125 and HFC–143a that there are data on the substance (components of R–404A, R–507A and adequate to support the petition.’’ The 5. Montreal Protocol/International other blends), on a total CO2-equivalent Agency disagrees that EPA stands in the Comment: Solvay comments that basis. It applies phase-down steps to shoes of a petitioner under 612(d) when HFCs are not regulated under the this group of HFCs as a basket and does it proposes to change the listing status Montreal Protocol and are not Class I or not assign individual deadlines to of an alternative. Rather, EPA’s action is Class II substances under Title VI. specific HFCs or address specific uses. governed by section 612(c), and EPA Mexichem states that the United States, considers the criteria used in reviewing 6. Absence of Petitions Canada, and Mexico have proposed to substitutes as provided in 40 CFR amend the Montreal Protocol to provide Comment: Solvay questioned whether 82.180(a)(7). Regardless, we note that an across-the-board phase down of the Agency has the authority to issue we also review section 612(d) petitions HFCs, but until then, EPA’s regulatory this proposed rule in the absence of one based on the same SNAP criteria and authority under Title VI is limited to or more petitions that fully satisfy the thus the ‘‘data on the substance ODS. AHAM adds that if at some point requirements of § 612(d). Solvay adequate to support the petition’’ EPA is authorized to phase out HFCs commented that while Congress granted necessarily are the data required for consistent with future international EPA the authority to create an initial list review under 40 CFR 82.180(a)(7). obligations that may constitute a more of approved substitutes for ODS under EPA has changed the listing status of appropriate avenue for phase-down § 612(c), § 612(d) specifies that substitutes in the past without having measures. AHAM believes there is additions or deletions to the SNAP list received a petition under section 612(d), minimal purpose in promoting an must be proposed via petition, and that as, for example, when we changed the international regulatory regime if EPA is petitions ‘‘shall include a showing by listing status of MT–31 (64 FR 3861, Jan. going to apply what it considers to be the petitioner that there are data on the 26, 1999; 40 CFR part 82 subpart G a ‘‘blunt and inappropriate’’ regulatory substance adequate to support the appendix E) and HBFC–22B1 (67 FR instrument domestically, regardless of petition.’’ Solvay stated that the CAA 4185, Jan. 29, 2002; 40 CFR part 82 the shape of a future international puts the burden on a petitioner to subpart G appendix J). scheme. AHAM comments that the demonstrate that the substance it While EPA has the right to act in the appliance industry’s transition from proposes to list satisfies all of the SNAP absence of a petition, as described HFCs is well underway, and EPA’s criteria. Solvay contended that EPA above, EPA did receive three petitions proposal should reflect and support this should not attempt to delist any filed under section 612(d) that are

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relevant to this rulemaking. Specifically, of criteria. Solvay referred to dictum in regulated community. Arkema claimed NRDC filed a petition on May 7, 2010. Honeywell v. EPA, 374 F.3d 1363, 1373 that any such measure would need to On February 14, 2011, EPA found that (D.C. Cir. 2004) stating that ‘‘it is at least include methods for weighing different petition complete for MVAC in new facially plausible to read the term types of risks against one another (such passenger cars and light-duty vehicles ‘available’ in section 612(c) as as flammability versus climate) and for and determined it was incomplete for permitting consideration of ‘economic including mitigation, as the existing other uses of HFC–134a. This rule or practicality’ concerns.’’ SNAP program, which did not originally responds to the aspect of that petition Mexichem commented that the text of provide for quantitative indexing of that we found complete. In addition, the proposed rule and the underlying risks, does not convey sufficient EIA filed a petition on April 26, 2012, docket, including the SNAP program’s information to the Agency or the comparative risk framework, are vague and NRDC, EIA, and IGSD filed a regulated community regarding risk on how EPA reached the required petition on April 27, 2012. Although management decisions. EPA found both of these petitions section 612(c) conclusion that the incomplete, our action in this final rule alternatives reduce overall risks to Response: EPA disagrees with the may be considered responsive to certain human health and the environment, commenters’ views regarding the aspects of the petitions, given that we leaving the impression that it Agency’s consideration of overall risk. are changing the listing of certain HFCs considered only GWP. Specifically, they In this rule, we applied the same used in sectors noted in those petitions state that out of the seven documents comparative risk framework that was from acceptable to unacceptable for that may be relevant to the comparative established for the SNAP program in most uses, and placing use conditions or risk framework analysis, only the 1994 and that has been used narrowed use limits on some of the ‘‘Climate Benefits of the SNAP Program successfully for over 20 years. When we remaining uses. A more detailed Status Change Rule’’ report refers to issued the proposal, we did not re-open discussion of the petitions can be found human health and the environment, fundamental parts of the SNAP in section IV of this rule. with a focus on climate benefits, but program, such as the factors we evaluate that the report itself is silent on and the manner in which we weigh 7. Application of Criteria for Review of estimated reduction of ‘‘overall risks to Alternatives them. Under the SNAP regulations, human health.’’ Mexichem also noted proponents of a substitute are required Comment: Solvay commented that that EPA promised to prepare a to submit a wide array of information, EPA has failed to properly apply the consolidated analysis document in the including information on ODP, GWP, SNAP factors to a delisting situation, proposed rule, but no such document toxicity, environmental fate and has given undue weight to GWP in its was available at the time the comments transport, flammability, exposure data analysis, and has based its decision on were drafted. Mexichem further stated and the cost and availability of the comparative GWPs of various non-ODS that an assessment of HFC–134a and substitute under review (see 40 CFR options to the exclusion of all other related alternatives is missing, and that 82.178 for a full list of the information factors. Solvay commented that the such an assessment should have required with SNAP submissions). EPA proposal was deficient in that EPA included several specific questions reviews these data and applies the failed to consider many relevant codes, related to the following factors: regulatory criteria adopted in 1994, standards and regulations, including Performance, availability, hazard, parallel energy efficiency regulations exposure, and cost of the alternatives. which include, in addition to issued by the DOE; building code These questions include whether the atmospheric effects, general population standards; fire code requirements; and other alternatives perform as well as risks from ambient exposure to Coast Guard regulations. Solvay also HFC–134a in the specific end-use; compounds with direct toxicity and to stated that EPA should have considered whether the other alternatives will be increased ground-level ozone, technical concerns like solubility, available in the necessary quantities; ecosystem risks, occupational risks, compatibility, and shelf stability; whether the other alternatives present a consumer risks, flammability, and cost equipment limits; supply chain better overall hazard profile; whether and availability of the substitute under considerations; and safety concerns that the other alternatives present a better review (see 40 CFR 82.180(a)(7)). As affect many end-use products. overall exposure profile; whether use of regards specific quantification of Solvay further commented that in the other alternatives involves an reductions in overall risk to human making a determination whether to list equivalent cost; and whether use of the health and the environment, in the 1994 a substance as an approved substitute to other alternatives represents a cost- rulemaking, we considered and rejected replace an ODS, the Agency must effective mitigation of CO2 emissions in comments suggesting that we develop conduct a comprehensive analysis of each end-use. an index to rank all substitutes based on each alternative in each end-use, Bally Refrigerated Boxes, Inc. risk. In the preamble to the rule, we including considerations of the cost of questioned whether the CAA authorizes specifically noted that ‘‘a strict the alternative, availability, and the EPA to delist non-ODS solely on the quantitative index would not allow for overall practicability of effectuating a basis of GWP. Arkema commented that sufficient flexibility in making replacement. Solvay focused on the EPA is focusing on the potential hazard appropriate risk management decisions’’ phrase ‘‘to the maximum extent of GWP alone and stated that EPA is not (59 FR 13044, March 18, 1994). Our practicable’’ in section 612(a) of the evaluating HFC–134a within a subsequent experience with the SNAP CAA, stating that Congress deliberately comparative risk framework. Arkema program has given us no reason to chose the term ‘‘practicable’’ to mandate stated that if the CAA were to authorize revisit this approach. an orderly transition from ODS. Solvay the SNAP program to ‘‘delist’’ stated that the term ‘‘practicable’’ previously approved non-ozone While EPA prepared a variety of ordinarily includes consideration of cost depleting substances based on climate, documents in association with the and availability. Solvay further argued then EPA would need to develop an proposed rule, the bulk of the that EPA had acknowledged and agreed objective measure for deciding which comparison of human health and with this understanding of the term by substitute poses a greater risk and environmental impacts of alternatives including cost and availability in its list communicate that standard to the appeared in the preamble to the

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NPRM.100 For this final rule, we have a listed substitute, consistent with example, we noted in the preamble to added a technical support document to SNAP’s past practices. As one example, the NPRM, in the context of alternatives the docket which provides the Federal in discussing the change in status for in several of the foams end-uses, that Register citations for information such HFC–227ea in the aerosol propellant flammability issues would be addressed as ODP, GWP, VOC status, flammability, end-use, the Agency explained in the in the process of meeting OSHA and workplace exposure limits both for preamble that other available substitutes regulations and fire codes (id. at 46,152, the substitutes remaining acceptable have zero ODP, are relatively low in 46,153); and in the context of the retail and for those with a changed status toxicity, are capable of remaining below food refrigeration and vending machine (EPA, 2015d). This information was their respective exposure limits, and are end-uses, that exposure limits for the discussed in the preambles to both the expected to have negligible impact on alternatives, including workplace NRPM and the final rule and is ground-level ozone levels (79 FR 46126, exposure limits of the AIHA and from provided in tabular format in the 46173). In each case, consistent with the OSHA and NIOSH, would be met. (id. technical support document for easier decision criteria listed at 40 CFR at 46,144). Concerning other technical comparison and consistency of 82.180(a)(7), EPA has considered concerns such as solubility, presentation. environmental impacts, flammability, compatibility, and shelf stability, this is As stated in the NPRM, the toxicity, and exposure. In the context of not information that the SNAP program documentation associated with the this review, we considered a large has routinely requested or received, proposed rule includes ‘‘market amount of information including, either for the substitutes used for characterizations, analyses of costs among other things: Scientific findings, comparison purposes or for those being associated with sector transitions, information provided by the Technology evaluated for listing. We have estimated benefits associated with the and Economic Assessment Panel (TEAP) recognized, and when warranted, made transition to alternatives, and potential that supports the Montreal Protocol, changes responding to such technical small business impacts’’ (79 FR 46126). journal articles, submissions to the considerations in this final rule where These documents provide information SNAP program, dockets for other EPA commenters provided information to the public about estimated rulemakings, presentations and reports relevant to the availability of environmental benefits, the affected presented at domestic and international alternatives: For example, in markets, and potential cost impacts, as conferences, and materials from trade establishing the change of status date for well as provide EPA’s screening associations and professional stand-alone refrigeration equipment, we analyses to determine whether this rule organizations. References cited in the took into consideration that certain may have significant economic impacts NPRM were listed in section IX of that larger capacity commercial stand-alone or significant impacts on a substantial document and the references cited in refrigeration equipment requires charge number of small businesses; they are not this final action are listed in section IX sizes larger than those established in the part of EPA’s comparison of human of this document. use conditions for most flammable health and environmental effects of Solvay suggested a number of refrigerants. considerations they believe should have alternatives. Similarly, Mexichem suggested that Mexichem noted in its comments that been included as part of EPA’s decision- making criteria, such as various EPA was required to evaluate specific EPA had included these documents in questions regarding performance, the docket for the proposed rule, but standards and codes, product shelf-life, and equipment limits. Solvay does not availability, hazard, exposure, and cost. raised a concern about the availability of Again, this ignores the established the consolidated analysis document discuss how the various considerations mentioned relate to the existing SNAP criteria that EPA uses in determining anticipated in the NPRM. The whether a substitute is acceptable or consolidated analysis is included in the review process. In general, we took such considerations into account to the unacceptable in a specified end-use. In docket for the final rule, but was not the NPRM, in determining whether available during the public comment extent relevant to the criteria for review of a substitute or to the availability of other substitutes were available that period (ICF, 2015a). This document is a posed lower risk than those for which consolidated sector-by-sector market other alternatives. For example, we considered such issues as the supply we proposed to change the status, EPA characterization for those sectors evaluated the ozone-depletion, climate, addressed in this action. While it and characteristics of alternatives as well as the status of various regulations local air quality, toxicity and incorporates some suggestions and and codes and standards as they relate flammability risks of the substitutes information provided by commenters, it to the availability of the alternatives and undergoing a change of status as well as otherwise does not add new substantive thus the appropriate time for the change of other alternatives, thereby addressing information other than that provided in of status. EPA specifically mentioned hazard and exposure concerns. We note the individual market characterizations building codes (id. at 46143) and energy that the statute refers to overall risk to at the time of the proposed rulemaking. efficiency and requested comment on human health and the environment, and It merely consolidates the information ‘‘the effect, if any, [the] proposal would does not require that the substitutes be for ease of reference. have on meeting applicable DOE better in terms of each potential human We disagree with the comments standards.’’ (id. at 46147). We also noted health and environmental concern. EPA suggesting that EPA did not consider that plans for the production of an does not typically compare the factors other than GWP. In the NPRM, alternative to HFC–134a in the MVAC performance or efficacy of substitutes for each end-use or sector, EPA end-use ‘‘are in place to make it except in considering whether a provided information comparing the available in volumes that meet current substitute is technically feasible (see alternatives and applying the full set of and projected domestic auto industry definition of ‘‘potentially available’’ at regulatory criteria, not solely GWPs, in demand.’’ (id. at 46141) 40 CFR 82.172). In other words, it is not deciding whether to change the status of We also addressed certain of these necessary for EPA to evaluate whether issues in the context of the potential other alternatives perform as well as 100 EPA also placed in the docket a document on HFC–134a (or other HFCs) in the exposure limits for alternatives in the foam blowing mitigation of risks both for those sector, titled, ‘‘Information on workplace exposure substitutes subject to the status change specific end-use in order to determine limits for foam blowing agents.’’ and those that remain available. For that overall risks to human health and

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the environment would be reduced Several commenters suggested or increase with the variety and level of through use of those alternatives. implied that EPA’s action was based customization. NAFEM comments that We have considered whether other ‘‘excessively’’ or solely on GWP. As in addition, manufacturers will lose alternatives will be available in discussed above, we performed a full revenues waiting for the limited number sufficient quantities as part of our comparative risk analysis for each of the of testing facilities able to accommodate analysis of the availability of substitutes and for each end-use for the industry’s products. The Alliance alternatives. As discussed in the NPRM, which we are changing the status. for Responsible Atmospheric Policy (the we set dates for the proposed status However, as noted in the preamble to Alliance) requests that greater weight be changes that reflect when there will be the NPRM, EPA issued this proposal in given to economic considerations where a sufficient supply of the alternatives. response to the CAP. As such, in the Agency is determining dates for (id. at 46,141) In some instances, we determining which substitutes and end- availability of new alternatives, or have revised those dates in this final uses to address in the proposed rule, we changing the listing status, which unlike action after taking into account evaluated the existing listing decisions SNAP listing, may require businesses to information on supply of alternatives in the eight sectors covered by the alter practices and business models. The submitted by commenters. SNAP program. In three of the sectors, Alliance also requests that these One of the regulatory criteria for we identified a subset of substitutes that economic considerations also be review of a substitute is the ‘‘cost and have a high GWP relative to other listed undertaken cognizant of competing availability of the substitute’’ (59 FR alternatives and for which we also had regulatory initiatives. The Alliance also 13044, Mar. 18, 1994; 40 CFR reason to believe other alternatives were comments that the SNAP change of 82.180(7)(vii)). The consideration of cost ‘‘available’’ for the end-use. For those status process should be used sparingly, under this criterion is limited to the cost substitutes included in the proposed since its economic implications should of the substitute under review; it is rule on the basis of having a relatively require a higher scrutiny in considering distinct from consideration of costs higher GWP, in most cases, EPA did not transition dates and market assumptions associated with the use of other find significant potential differences in than is needed for the SNAP listing alternatives to which the substitute is risk with respect to the other criteria, approval process. DuPont comments that it is important to reduce emissions being compared. See Honeywell, 374 with the exceptions of flammability and local air quality impacts. However, in a way that does not slow down global F.3d at 1,378 (J. Rogers, concurring in where flammability risk was a potential trade, and to achieve emissions part and dissenting in part) (‘‘While the concern, we concluded that such risk is reductions in a cost-effective manner. SNAP regulations make the ‘cost and mitigated by the existing use conditions Arkema comments that no SNAP rule availability of the substitute’ an element or through other existing regulations should impose unreasonable burdens on of acceptability . . . that concern is (e.g., OSHA). In the case of spray foam, the U.S. economy. Arkema believes that limited to whether EPA ‘has . . . reason we proposed to change the status of EPA must allow more time for to prohibit its use,’ not to whether fewer HFCs than in other foam blowing transitions to avoid that outcome. cleaner alternatives for the substance are end-uses in consideration of greater Mexichem believes EPA failed to take already ‘currently or potentially flammability risks in that end-use. into account the economic implications available’.... Consideration of Regarding VOC emissions and potential of the proposed rule. transition costs is thus precluded by the impacts on local air quality, for the Response: As discussed more fully in SNAP regulations as currently written, aerosol propellant end-use, we did not section VII.A.7, under the SNAP criteria irrespective of whether it might be propose to change the status of HFC– for review in 40 CFR 82.180(a)(7), the permitted under CAA § 612(c). . . .’’) 152a, a VOC-exempt aerosol propellant. only cost information that EPA Contrary to Solvay’s contention, considers as part of its SNAP review of including the cost of the substitute in B. Cost and Economic Impacts of substitutes is the cost of the substitute the list of review criteria does not Proposed Status Changes under review. The transition timelines amount to an acknowledgment that the EPA received a number of comments in this final rule are based on term ‘‘practicable’’ as used in section on the cost and economic impacts of the information concerning the availability 612(a) necessarily involves proposed rule. Some of these comments of alternatives. consideration of the costs associated are summarized in the response to Comment: Arkema commented that with using other alternatives. EPA has comments sections for the end-uses EPA underestimated the costs of the not determined whether the term addressed in this final rule. We NPRM. Arkema believes EPA’s cost ‘‘practicable,’’ the term ‘‘available,’’ or summarize and respond to the more estimates are unduly optimistic given other terms in section 612 provide general cost comments below. all that must be done to redesign discretion to consider such costs. equipment. Arkema further commented Similarly, our existing regulations do 1. Costs of Proposed Rule on three areas of economic analysis that not direct us to consider whether use of Comment: EPA received several they state need to be addressed. First, the other alternatives involves an comments indicating that the Arkema stated that EPA does not equivalent cost to that of HFC–134a or commenters believe EPA should include the ‘‘wasted costs’’ incurred by a cost-effective mitigation of CO2 provide more time in order to avoid those manufacturers that have actually emissions. We are not addressing in this undue burden on the U.S. economy. changed designs of their equipment to rulemaking whether to revise the NAFEM comments that if this rule is meet DOE standards, based on the regulatory criteria to include an finalized as proposed, the change from continued availability of existing SNAP expanded role for the consideration of using R–404A will be very costly. substitutes, but that now may need to costs in SNAP listing decisions. We NAFEM stated that compliance cost change their designs again. Second, have simply applied the existing estimates range from $500,000 to several Arkema suggested that EPA should regulatory criteria in determining million dollars depending on the account for ‘‘economic effects’’ on U.S. whether to change the listing status of number and variety of custom products plants that produce HFC–134a and the the substitutes addressed in this action. the manufacturer offers. They further other HFCs and HFC blends whose Thus, we have not considered the costs comment that testing costs are routinely listing the Agency proposed to change. of transition to other alternatives. several hundred thousand dollars and Third, Arkema suggested that the

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economic analyses should disclose how would have allowed us to analyze the and AC equipment with the refrigerants EPA expects prices and availability to impacts as requested by Arkema. We for which they are designed, we expect change once it eliminates competing disagree with Arkema that it is there will continue to be a market for products, including stimulation of necessary or appropriate to analyze the HFC–134a and other HFC refrigerants short-term demand for the HFCs and indirect impacts upon chemical plants for years to come. HFC blends whose listing the Agency and producers. Such analysis would be In those cases where commenters proposed to change, longer term highly speculative about the degree of provided specific, detailed cost increases in prices for the HFCs and cost pass-through from producers to information, we used that information HFC blends, and increased demand for consumers of these chemicals. The total to revise the cost assumptions in our next-generation fluorinated products. cost estimates would be unchanged; updated cost analysis for this final rule. Solvay commented that given the rather such an analysis would relate to For additional information on economic cumulative regulatory burden, EPA has transfers between producers of the analysis conducted for this rule, see the dramatically underestimated the costs of substitutes undergoing a change of supporting document ‘‘Revised Cost the NPRM. As an example, Solvay status, producers of the acceptable Analysis for Regulatory Changes to the pointed to the DOE energy conservation alternatives for the same uses, and Listing Status of High-GWP standards. consumers of these products rather than Alternatives’’ (ICF, 2015c). Response: Although EPA did not losses to the economy or to a market Comment: NRDC and IGSD consider the costs of transitioning to sector as a whole. We note that the commented that the rule is important other alternatives in making the listing transition affecting the majority of HFC– because it provides a needed signal to decisions in this rulemaking, we did 134a production, the transition away various industrial sectors that as safer prepare a cost analysis and a small from HFC–134a in MVAC, is already alternatives are brought to market, business impacts analysis for this rule occurring because of other regulations, substitutes with high GWPs will be for businesses that are directly and therefore changes to production and removed from the SNAP list. NRDC and regulated. cost of HFC–134a cannot easily be IGSD commented that this provides We do not typically analyze attributed to this action. American companies with an cumulative regulatory burden in our EPA recognizes that transitioning to opportunity to become industry leaders cost analyses. Nonetheless, EPA notes other alternatives is likely to require as the global market moves away from that to the extent that affected entities capital costs and investments in high-GWP substances, by developing recently incurred costs to comply with research, updated equipment, and their new chemicals and processes to DOE rulemakings, the change of status related financial impacts. Many transition the refrigeration, cooling, dates in the final rule for the foam chemical producers have either aerosol and foams markets as quickly as blowing sector and for some of the submitted SNAP notifications or possible. NRDC further commented that refrigeration end-uses (e.g., vending expressed interest in submitting SNAP this rule will establish U.S. industry as machines) may reduce the potential for notifications concerning new molecules a leader in safer chemicals, helping pave additional costs due to complying with and blends of existing molecules. EPA the way for global action under the both rules compared to the change of agrees with Arkema that this rule is Montreal Protocol. NRDC noted that status dates in the NPRM, since likely to stimulate demand in next- when EPA previously proposed phasing equipment manufacturers should better generation alternatives further. down CFCs and ODS, there were be able to coordinate DOE’s EPA also notes that, for example, warnings about dire impacts on industry requirements and these SNAP HFC–134a likely will be a component of that did not come to pass, and NRDC requirements. For example, the change many low-GWP blends that are being expects this will be true for this rule as of status date for rigid PU appliance developed specifically to replace HFC– well. NRDC commented that 25 years of foam is January 1, 2020, while based on 134a. EPA listed as acceptable one of experience with the Montreal Protocol the 2014 compliance date of the most those blends, R–450A, on October 21, and the CAA has shown us that recent DOE standards, the compliance 2014 at 79 FR 62863. The Agency is transitioning to safer chemicals works date for any revised energy conservation aware of additional blends that multiple smoothly. standard for household refrigerators and chemical producers are developing. As Response: EPA appreciates this freezers would be no earlier than 2020. noted throughout this document, the comment and agrees that there are many For vending machines, the final change range of alternatives includes new innovative U.S. companies bringing new of status date is January 1, 2019, which molecules and existing compounds, low-GWP, energy-efficient products to will likely coincide with compliance encompassing fluorinated, non- market. requirements for any new or amended fluorinated and in some cases not-in- 2. EPA’s Cost Analysis and Small DOE refrigerated beverage vending kind alternatives. Business Impacts Screening Analysis machine standards, as compliance with Third, we question Arkema’s such standards would be required three assumption that competition will Comment: EPA received a number of years after the publication of a final decrease and thus cost for low-GWP comments indicating that small rule. Material in the docket for that alternatives will rise. For each of the businesses bear a disproportionate share action indicate DOE’s plans for a final status changes in this final action, more of the regulatory burden and that the rule with a compliance date three years than one other alternative is currently NPRM represents a ‘‘significant later (see EERE–2013–BT–STD–0022). listed as acceptable or acceptable, regulatory action,’’ NAFEM comments Second, EPA has analyzed the costs of subject to use conditions, for the that EPA must conduct a complete users that are directly regulated and has relevant end-use. Moreover, we expect analysis of the impacts on small entities not analyzed the impacts on chemical new SNAP submissions that would before any final regulation can be producers, which are indirectly affected result in the introduction of further promulgated. NAFEM comments that by the regulation. The commenters did alternatives to increase, rather than EPA’s analysis is too narrow, is not provide specific cost or supply reduce, competition. Further, because incomplete, and that its conclusions are information regarding redesigning this rule does not regulate production of unsupported. NAFEM further comments equipment or specific information on individual chemicals directly and that the NPRM disproportionately operating costs for chemical plants that allows servicing of existing refrigeration affects small entities. NAFEM comments

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that the NPRM represents a major rule stage is included in the docket (ICF, refrigerators, air conditioners, aerosols and will have a $100 million effect on 2014f). The commenters do not point to and foams and substitute them with the economy and a major impact on the any specific aspect of that analysis that safer, more climate-friendly alternatives. commercial refrigeration industry and they believe are deficient. A Small They also noted that some HFCs remain its consumers. NAFEM commented that Business Advocacy Panel is convened in the atmosphere for decades or even the docket lacks a robust industry when a proposed rulemaking is centuries after they are released, so that analysis of the effects on small business expected to have a significant impact on they have a strong cumulative effect. manufacturers and customers, or a substantial number of small entities, NRDC stated that if EPA were only reasonable support for EPA’s Regulatory or ‘‘SISNOSE.’’ We have updated our considering human health risks, HFCs Flexibility Act conclusions. NAFEM small business impacts screening should be banned immediately given recommends that EPA initiate a Small analysis using the change of status the climate risks. NRDC commented that Business Regulatory Enforcement decisions and dates in the final rule, we know these chemicals are extremely Fairness Act (SBREFA) Small Entity adding boat manufacturers as affected potent agents of climate change, and we Representative review panel to help entities, and using detailed cost know that continuing to use them only inform final rulemaking, as required by information provided by commenters exacerbates the climate problem. EIA the Regulatory Flexibility Act. Solvay (ICF, 2015b). EPA’s preliminary and requested that EPA continue to remove also commented that EPA should final screening analyses concluded that high GWP HFCs from the lists of convene a Small Business Advocacy this rulemaking would not pose a acceptable substitutes, given that HFC Review Panel under the SBREFA. SISNOSE. In the analyses, EPA emissions are set to double by 2020 and Response: E.O. 12866 states that rules recognized that some small businesses triple by 2030, and given that this rule that have an impact on the economy of may experience significant costs, but has the potential to reduce 42 $100 million per year qualify as concluded that the number of small MMTCO2eq by 2020. EIA urged EPA to significant regulatory actions. EPA businesses that would experience address all sectors covered in the SNAP disagrees that this rule would have an significant costs was not substantial. program, given the needs of climate and impact on the economy of $100 million Both the screening analysis for the existence of climate-friendly more per year. We performed an purposes of determining whether there alternatives. DuPont commented that analysis of the costs of the proposed was a SISNOSE and the analysis to they acknowledge the environmental rule on businesses and estimated the determine whether the rule was need to avoid future growth in GHG total annualized upfront compliance significant based upon economic emissions, and have thus developed costs to range from $8.9 million to $41.6 grounds were conducted based on the low-GWP, energy efficient products. million; total annual savings are best market and cost information Response: The Agency appreciates the estimated to be about $25.1 million available to the Agency. Where support of actions to list change the (ICF, 2014g). This cost analysis did not commenters provided specific market or status of certain HFCs. Other actions evaluate the share of costs likely to be cost information, the Agency used that urged by the commenters are outside the borne by consumers, since it is not clear information to update these analyses. scope of this rulemaking. what proportion of cost impacts may be The updated analyses came to the same 2. EPA’s Benefits Analysis carried on to consumers, and further, conclusions: That the final rule would such economic analyses typically look not pose a SISNOSE and that it is not Comment: EPA received a number of at costs to the regulated community an economically significant rule (ICF, comments regarding the importance, rather than indirect impacts on 2015b,c). significance, and magnitude of the consumers. We updated this analysis environmental benefits of avoided HFC based upon the regulatory options and C. Environmental Effects of Proposed emissions that would result based on change of status dates in the final rule, Status Changes the proposed rule. and using cost information provided by EPA received submissions from 42 CARB comments the current commenters. The changes in the final commenters related to the regulations and the SNAP proposal meet rule—especially with respect to environmental impacts of the proposed only half of the 80% reduction compliance dates—reduce the cost status changes. Additionally, EPA necessary for the HFC sector if impacts on small businesses, while the received 7,022 mass mailing letters California is to meet its overall GHG updated cost information resulted in commenting on the importance of reduction goal contained in California higher cost estimates. In this updated transitioning away from HFCs to more Executive Order (EO) S–3–05 (2005). analysis, we estimated the total climate-friendly alternatives. Ten Therefore, CARB believes additional annualized upfront compliance costs to commenters referred to the CAP. HFC reductions are required to reduce range from $28.0 million to $50.6 this fastest-growing source of GHGs. 1. General Comments million, using a 7% discount rate, and NRDC and IGSD comment that even from $19.5 million to $37.8 million, Comment: EPA received over 7,000 though HFCs may currently make up a using a 3% discount rate. Total annual substantially identical comments small piece of global climate emissions, savings are estimated to be about $19.3 regarding the climate impacts of HFCs their projected rapid growth million (ICF, 2015c). In either case, this and supporting action to address the underscores the urgent need to replace is well below the $100 million per year growth in usage of these potent these chemicals with lower-GWP threshold to consider this an greenhouse gases. The commenters also alternatives. Further, NRDC and IGSD economically significant rule on stated that that the rest of the world, comment that without stringent rules in economic grounds. including Europe and Japan, is taking place, HFC emissions increases could EPA disagrees with the commenter action to reduce HFC emissions, so the counteract the progress EPA is striving that the ‘‘docket lacks a robust industry United States should also transition to make in other sectors to reduce analysis on the effects on small business away from HFCs to protect the planet carbon pollution. manufacturers and customers, or from the catastrophic impacts of climate Response: EPA appreciates the reasonable support for EPA’s Regulatory change. They also stated that it is of the support for reducing GHG emissions, Flexibility Act conclusions.’’ The utmost importance to limit ‘‘super- and appreciates the estimates of the Agency’s screening analysis at proposal potent’’ greenhouse gases from use in benefits in terms of MMTCO2eq that the

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commenters provide. CARB’s comment from the Vintaging Model, although assume that a significant portion of the concerning meeting GHG reduction such information may be used in some aerosol product manufacturing industry goals in a California EO are beyond the cases to estimate emissions (e.g., VOC has transitioned out of HFCs. Although scope of this rule; we may consider emissions from an end-use where the the cited 2014 TEAP report—which the additional status changes in a future submitter has provided insufficient commenter states indicates hydrocarbon rule. We agree with NRDC and IGSD information). The preambles to this final technologies dominate the foam sector— that HFC emissions are growing rapidly rule and the NPRM include information applies globally rather than specifically and that it is timely to act now to summarizing the comparisons to other to the United States, EPA notes that its encourage use of lower-GWP alternatives. In addition, we also have Vintaging Model does specifically alternatives and ensure continuing docketed a document which provides assume that significant transition in the progress. The Agency notes that both the Federal Register citations for the foam industry to non-ozone-depleting, EPA’s estimates cited in the NPRM and information on the health and low-GWP substances, including the estimates the commenters provide environmental characteristics of various hydrocarbons, has occurred. are based on the provisions of the alternatives in the end-uses covered in Comment: Arkema comments that as proposed rule, and that the benefits this final rule (EPA, 2015d). far as they are aware, EPA has never from this final rule differ. For further See the next response for further submitted its Vintaging Model for information, see EPA, 2014 and EPA, information about where one can find external peer review. Arkema comments 2015b. information on the modeling that the Vintaging Model qualifies under Comment: Arkema comments that at assumptions and methodology. the Agency’s Peer Review Handbook as this time, it is not possible to provide a Comment: Arkema commented that in ‘‘influential scientific information’’ for more detailed critique of the Vintaging order to calculate HFC sector emission which external peer review is Model’s assumptions and the levels of savings, the Vintaging Model needs to warranted. Arkema believes that the sector emissions given the lack of be revised since it is over-estimating underlying data has been kept a secret. meaningful information in the docket. chemical demand. Arkema also Arkema comments that EPA’s NPRM is Arkema comments that the docket does commented that the basis and not consistent with Administrator not provide all the model inputs, nor methodology for the Vintaging Model’s McCarthy’s three pillars of EPA’s does EPA disclose the specific emission emissions estimates are unclear, but a scientific conclusions: Transparency, factors that it used to derive its comparison to publicly available rigorous peer review, and robust, estimates, how recent those estimates information should have raised red flags meaningful public comment. Arkema are, and how they are expected to because a steady growth rate of HFC comments that EPA cannot obtain change over time. Arkema comments emissions in the U.S. is extremely robust, meaningful comments if the that EPA’s benefits analysis nowhere unlikely for at least three of the four Vintaging Model is not subject to peer details the extent of the uncertainties in covered sectors (i.e., MVAC, aerosols, review and if underlying data is kept its emissions estimates, even though the and foams). For MVAC, Arkema secret. record elsewhere acknowledges that comments that refrigerant charge sizes Response: As explained above, EPA such emissions estimates may be have been dropping, and new cars will used its Vintaging Model to provide unreliable. be transitioning to low-GWP alternatives information to the public, but does not Response: As an initial matter, EPA over time. Arkema notes that for rely on that information to support did not rely on the Vintaging Model in aerosols, a significant portion of the today’s rule. Thus, the issue of whether reaching decisions about whether other aerosol product manufacturing industry the Vintaging Model should be subject alternatives present lower overall risk. has already transitioned out of the HFCs to a peer review process is outside the Nor did EPA otherwise rely on the proposed for regulation. In addition, scope of this rulemaking action. benefits analysis that accompanied the Arkema points out that UNEP’s 2014 3. Energy Efficiency proposed rule. We estimated emissions TEAP report shows that hydrocarbon Comment: EPA received a number of reductions resulting from this technologies already dominate the foam comments regarding energy efficiency rulemaking in order to provide sector. information to the public. Consistent Response: EPA’s Vintaging Model has and LCCP of refrigeration equipment. with section 612(c) of the CAA, EPA been explained annually in the NAFEM commented that the life-cycle relied on the criteria for review Inventory of U.S. Greenhouse Gases and climate performances of manufacturers show that only about 10% of the specified in the SNAP regulations at 40 Sinks 101 report and other places. For environmental impact is due to a CFR 82.180(a)(7) in determining example, the 2015 annual Inventory of combination of refrigerant leak, charge whether the substitutes for which we U.S. Greenhouse Gas Emissions and amount and GWP of the refrigerant; the proposed to change the status presented Sinks report, EPA Report 430–R–15–004 rest relates to energy efficiency. NAFEM greater risk to human health and the (EPA, 2015c), covers emissions, asserted that the proposed SNAP rule environment than other available including emissions of HFCs used as does not account for nor can EPA claim alternatives. ODS alternatives, for the years 1990 any significant environmental benefits As part of the process for listing through 2013 and provides in detail the to offset significant costs. The Alliance alternatives, EPA evaluates information basis and methodologies used. The noted that given the important energy concerning a substitute according to the commenter is misinformed with respect efficiency consequences of this criteria in EPA’s regulations at to the assumptions used in the model. proposed rule, it is unclear how this 82.180(a)(7) (e.g., atmospheric effects, Specifically, the model does assume action will meet the statutory standard ecosystem risks, occupational and that MVAC refrigerant charge sizes have of no greater risk to human health and consumer risks, availability) in dropped over time, and it utilizes the environment. The Alliance comparison with other available detailed sector information to calculate commented that by taking previously substitutes for the same end-uses. At the such changes. In addition, it does time of review, we prepare a risk screen acceptable substitutes off the market, and place it in the relevant public 101 Available online at www.epa.gov/ these proposals could result in less docket for our listing decisions. It is rare climatechange/ghgemissions/usinventoryreport/ efficiency in the near term. The Alliance for risk screens to include information 2014.html. further comments as EPA evaluates the

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timing of transitions in various end-use Comment: Two comments stated that products to meet DOE energy segments, it is important that life cycle EPA’s response to the President’s CAP conservation standards due to take greenhouse gas emissions, including in the NPRM did not consider full effect in 2017. See section V.C.1.b for a those associated with energy use, are ramifications of the challenges to discussion of DOE energy conservation given proper consideration as part of industry. standards that apply to the equipment ensuring the alternative presents ‘‘no Response: The NPRM proposed affected by this rule. changes to listings based on the greater risk to human health and the Response: Given that today’s rule information the Agency had at the time environment.’’ contains later deadlines than proposed, Response: EPA provided estimates of of the proposal. We requested comments as well as a phased-in approach with the climate benefits associated with the to further our understanding of any NPRM, and we have also estimated the potential challenges relating to technical different status change dates for climate benefits associated with this feasibility or supply. We considered that different kinds of equipment as final rule (EPA, 2014; EPA, 2015b). additional information as we developed suggested by many commenters, this These estimates are based on avoided the final rule. should address commenters’ concern direct HFC emissions. They are distinct about meeting both sets of D. Potential Exemptions 102 from our evaluation of whether other requirements. EPA continues to alternatives are currently or potentially Comment: EIA commented on coordinate with DOE as EPA reviews available that present less overall risk to potential exemptions, specifically the alternative refrigerants and foam human health and the environment. need for a mechanism to petition for an blowing agents, DOE tests energy EPA does not have a practice in the essential use exemption or for more efficiency of certain alternative SNAP program of including indirect time with a valid basis. The commenter refrigerants, and the two agencies climate impacts or energy efficiency in recognized that the potential for the discuss each other’s rulemakings in the overall risk analysis. We do consider misuse of such a mechanism could development. EPA sees the redesign of issues such as technical needs for overwhelm the resources of the EPA products as an integral part of business energy efficiency (e.g., to meet DOE available for this transition. As a result, operations, and believes redesigning standards) in determining whether EIA recommended that EPA grant no equipment to use refrigerants that pose alternatives are ‘‘available.’’ Elsewhere blanket exemptions or delays due to the a lower overall risk to human health and in this final action, EPA addressed and needs of one or a few sectors but that the environment is in many ways responded to comments concerning EPA establish an exemption mechanism similar to past redesigns. We believe energy efficiency (see in particular with a penalty clause to avoid misuse. that manufacturers can incorporate sections V.C.3.c, V.C.4.c, V.C.7 and Response: The SNAP regulations do lower-GWP refrigerants in stand-alone V.D.3.c). EPA notes that the refrigerant not currently contain an across-the- retail food refrigeration equipment and is only one of many factors affecting board mechanism for petitioning for an remote condensing units while energy efficiency. Moreover, even as exemption, and EPA did not propose designing for DOE energy conservation refrigerant transitions have taken place such a mechanism in the NPRM. To standards for commercial refrigeration over past decades, we have seen make such a change in our regulations, equipment and for walk-in coolers and improved energy efficiency. This is we would first need to provide an freezers, both of which have compliance often due to equipment redesigns and opportunity for public comments. In dates in 2017, and can incorporate technology advancements that include some instances in the final rule EPA has lower-GWP foam blowing agents while factors besides the choice of refrigerant. changed a listing to acceptable, subject designing for DOE standards for EPA notes that a number of models are to narrowed use limits. The narrowed household refrigerators/freezers. Based already commercially available that do use limits identify a narrow part of the on the 2014 compliance date of the most not use the refrigerants subject to a end-use in which an end user could use recent DOE standards for residential change of status in this final rule and an otherwise unacceptable substitute if refrigerators and freezers, the also meet or exceed the relevant energy they can support that no other compliance date for any revised energy conservation standards and thus reduce acceptable substitutes are available for conservation standard for household both direct and indirect climate their specific application. refrigerators and freezers would be no impacts. E. Interactions With Other Rules earlier than 2020. As discussed in the previous and following responses and in 4. The Climate Action Plan Comment: The Alliance, AHAM, sections V.C.7 and V.D.3.c) as well as Comment: EPA received six AHRI, and a number of other other sections of this preamble, there are comments commending the EPA for commenters in the commercial both refrigerants and foam blowing quickly proposing a rule to achieve the refrigeration and home appliance agents with lower GWPs available that goals in the President’s CAP. industries expressed concern about the allow for improved energy efficiency Response: EPA appreciates the feasibility of using other alternatives to compared to the substitutes we are support from this wide variety of meet DOE energy conservation finding unacceptable in this rule. EPA interested stakeholders on addressing standards. AHRI and Coca-Cola stated anticipates that innovative companies the goals in the President’s CAP. that DOE’s federal minimum energy Comment: EPA received two conservation standards are based on 102 If a manufacturer believes that its design is comments questioning whether the refrigerants and foam blowing agents subjected to undue hardship by DOE’s regulations, President’s CAP provides authority to that EPA is now proposing to list as the manufacturer may petition DOE’s Office of regulate HFCs. unacceptable. NAFEM comments that Hearing and Appeals (OHA) for exception relief or exemption from the standard pursuant to OHA’s Response: Section 612 of the CAA, manufacturers are now finding that authority under section 504 of the DOE not the CAP, provides the authority for developing a product to meet both the Organization Act (42 U.S.C. 7194), as implemented this action. CAA section 612(c) requires energy conservation standards and also at subpart B of 10 CFR part 1003. OHA has the EPA to list a substitute as unacceptable utilizes acceptable alternative authority to grant such relief on a case-by-case basis if it determines that a manufacturer has if other available alternatives pose lower refrigerants and blowing agents is demonstrated that meeting the standard would risk to human health and the daunting if not impossible. Commenters cause hardship, inequity, or unfair distribution of environment. pointed out that they have redesigned burdens.

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will seize this opportunity to develop equipment. We agree with the Structural Concepts that dual more efficient and profitable designs. commenters who noted that R–744 may compressor systems are more likely Comment: A number of manufacturers be more energy efficient in locations needed for larger equipment, of commercial refrigeration products with lower ambient temperatures and particularly larger equipment using commented on the relative energy thus may be more suitable for use hydrocarbon refrigerants which have efficiency of alternative refrigerants, indoors than outdoors. R–290 may use limits restricting the refrigerant compared to the refrigerants proposed to provide better energy efficiency than charge in a single refrigeration circuit. be unacceptable. Lennox commented HFC refrigerants in many situations, but Recent listings of additional that the substitution of R–407 family not necessarily all, and not all end users nonflammable refrigerants (e.g., R– refrigerants in place of R–404A and R– will want to use a flammable refrigerant. 450A) allow for additional options that 507A will negatively affect the In response to the comment from would not require dual compressors. In efficiency performance of refrigeration Structural Concepts expressing concern response to Parker Hannifin’s comment equipment for walk-in coolers and about the ability to meeting energy about discharge temperatures, we note freezers. Structural Concepts stated that conservation standards using CO2 and that producers of some alternative switching from R–404A to R–744, and the cost of using propane, we note that refrigerant blends under review by the consequently switching to thicker there are additional refrigerant choices SNAP program claim that these new piping and new compressors, would available for stand-alone refrigeration blends have operating properties similar increase energy usage overall by 45%, equipment and vending machines to those of HFC refrigerants, such as which would cause the unit to exceed besides CO2 and hydrocarbon similar operating pressures and the allowable energy level determined refrigerants, such as the nonflammable discharge temperatures. by the DOE. AMS commented that after refrigerants R–448A, R–449A, R–450A Given the variety of currently or studying the suitability of the acceptable and R–513A. As discussed in section potentially available alternatives, EPA (R–744) and proposed acceptable (R– V.C.7, these blends may show improved believes it is unlikely that 290, R–600a and R–441A) alternatives energy efficiency over HFC–134a and R– manufacturers will have to use extensively, it concluded that only R– 404A. In addition, design and operation refrigerants that will result in reduced 290 will allow it to meet DOE energy of refrigeration equipment affects energy energy efficiency compared to the conservation mandates. NAMA stated efficiency and not just the refrigerant refrigerants being listed unacceptable in that because of DOE requirements, CO2’s used. Given the variety of currently or this final rule. use would be limited to indoor self- potentially available alternatives, EPA Comment: The Alliance, AHAM, contained units, limiting locations of believes it is unlikely that AHRI, and a number of other refrigerated vending machines, reducing manufacturers will have to use commenters in the commercial revenues for the entire supply chain and refrigerants that will result in reduced refrigeration and home appliance reducing consumer choice. Information energy efficiency compared to the industries suggested that the SNAP in the Agency’s possession describes a refrigerants being listed as unacceptable rulemaking schedule should be better manufacturer’s testing of the energy or otherwise restricted in this final rule, coordinated with the ongoing DOE efficiency of condensing units with R– and we expect that manufacturers will energy conservation standard 404A compared to R–407A, finding that be able to meet DOE energy rulemaking schedules. AHAM the energy efficiency was typically conservation standards with the comments that firms have invested higher with R–407A in medium- remaining available alternatives. millions of dollars to meet new DOE temperature equipment but was Comment: Some manufacturers of conservation standards that were based typically lower with R–407A in low- commercial refrigeration products on the assumption of the availability of temperature equipment (EPA–HQ– commented on how design changes HFCs, and have diverted the scarce OAR–2014–1098–0184). Structural needed to accommodate alternative capital that is available for regulation- Concepts comments that R–744 is not refrigerants may negatively affect energy driven investment. The National flammable, but it is less energy efficient efficiency. Parker Hannifin stated that Association of Manufacturers (NAM) than the acceptable, flammable most of the alternatives result in higher requested that the EPA harmonize the refrigerant propane, and to meet the discharge temperatures and that some of rule with the DOE rule in order to ease EPA proposed regulation would likely the discharge temperature control the capital- and design-intensive mean they fail to meet DOE regulations methods employed negatively affect manufacturer transition. Scotsman Ice or go out of business trying to meet system efficiency. Nor-Lake and Systems and Whirlpool Corporation them. Structural Concepts indicated that they stated that as a result of the potential Response: EPA expects that no single expected to need dual compressor regulatory measures, their ability to refrigerant will improve energy systems, and stated that the increased develop any customer focused products efficiency compared to the unacceptable energy usage of the dual system may or new product features during this time refrigerants in every type of equipment outweigh the environmental gains of will be constrained. GE Appliances or in every situation. For example, the using the alternate lower-GWP notes that the burden of overlapping information regarding a manufacturer’s refrigerant. regulatory requirements between SNAP test results indicates that R–407A may Response: EPA agrees that some and the DOE require consideration and provide improved energy efficiency design changes could have negative review under the executive orders compared to R–404A for medium- impacts on energy efficiency if they issued by President Obama and his temperature refrigeration equipment were done without broader predecessors that require consideration (refrigerators), but not necessarily for considerations for the overall of cumulative regulatory burden. low-temperature refrigeration performance of the appliance. As stated Response: EPA’s timeframes are based equipment (freezers); this information elsewhere, many models that comply upon our understanding of the indicates that Lenox’s comment about with DOE energy conservation availability of alternatives, considering lower energy efficiency of R–407A standards are already commercially technical challenges and supply. The compared to R–404A or R–507A may be available that do not use the refrigerants timeframes in this final rule take into correct for low-temperature equipment subject to a change of status in this final account additional information on and incorrect for medium-temperature rule. We agree with Nor-Lake and availability provided to the Agency

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during the comment period. These short term alternatives to those being matter, we have deferred to U.S. timeframes account for the time needed found unacceptable because changes to regulations. More importantly, we have to meet the technical challenge of model building codes and subsequent not deferred to other regulations in a designing equipment using alternative adoption by states and localities will manner that overrides the statutory refrigerants that can meet the DOE likely be much later than 2020. mandate governing the SNAP program. requirements. We note that EPA and Response: EPA acknowledges that Rather, in the context evaluating risks of DOE coordinate to the extent possible. some building codes may currently alternatives under our comparative risk For example, each agency has reviewed restrict or prohibit use of flammable framework we have looked to the other’s rules. The list of acceptable refrigerants. We note that other available regulations in effect, such as workplace SNAP alternatives is evolving. EPA is or potentially available refrigerants that regulations from OSHA or the National also coordinating with DOE to ensure are not flammable and have relatively Emission Standards for Hazardous Air more alternative refrigerants are being low GWP (roughly 600 or less), Pollutants, to determine whether a tested for energy efficiency. We including R–744 and R–450A, are listed specific alternative may be used as recognize that as manufacturers focus as acceptable for use in retail food safely as other available alternatives. on designing equipment to meet the refrigeration and in vending machines. This is different from aligning with a DOE standards and to use refrigerants Comment: A number of manufacturers timeline in another nation’s regulations acceptable under the SNAP program, of laboratory refrigeration equipment that are not effective within the United they may need to divert design and several foam manufacturers States or deferring to considerations in resources from other projects for that suggested that EPA align the timelines those regulations, such as transition period of time. However, as provided in for transition of foam blowing agents costs, that are not part of the SNAP section VII.A.7, this type of transition and refrigerants with the requirements decision criteria. cost is not a part of the SNAP review of the EU F–Gas regulations. The criteria. As explained in the Statutory commenters summarized the deadlines F. Other Comments and Executive Order sections at the end for foams as: 2008 for one-component Additional public comments not of the NPRM and of this final rule, EPA foams, January 1, 2020, for XPS, January already discussed above along with has complied with those requirements. 1, 2023, for other foams, and provisions EPA’s responses are available in the Comment: The National Restaurant for a four-year extension of time where Response to Comments document Association (NRA) comments that the (1) ‘‘alternatives are not available or which accompanies this action (EPA, food industry is already being affected cannot be used for technical or safety 2015a). by the EPA’s rule Listing of Substitutes reasons’’ or (2) ‘‘the use of technically for Refrigeration and Air Conditioning feasible and safe alternatives would VIII. Additional Analyses and Revision of the Venting Prohibition entail disproportionate costs.’’ EPA does not consider the cost of for Certain Refrigerant Substitutes. NRA Commenters summarized the deadlines transition to other alternatives in believes the EPA should consider the for refrigerants in commercial making listing decisions because under impacts of the cumulative regulatory refrigerators and freezers as being the SNAP criteria for review in 40 CFR burden of rulemakings and standards January 1, 2020, for HFCs with GWP of 82.180(a)(7), consideration of cost is imposed nearly simultaneously on 2,500 and January 1, 2022, for HFCs limited to cost of the substitute under manufacturers of this equipment in the with GWP of 150 or more. review. However, EPA has prepared final rulemaking. Reasons given for this coordination of technical support documents including Response: The rule entitled ‘‘Listing of timeline with EU regulations include: analyses of costs associated with sector Substitutes for Refrigeration and Air Many companies are trans-national and transitions, estimated avoided GHG Conditioning and Revision of the had already been planning on a emissions associated with the transition Venting Prohibition for Certain transition in line with the EU regulatory to alternatives, and potential small Refrigerant Substitutes’’ lists additional deadlines; the SNAP program has business impacts.103 104 105 substitutes as acceptable, subject to use deferred to other regulations in the past; The transition scenarios analyzed conditions. It does not mandate use of and the later deadlines will allow for possible ways to comply with the final the newly listed substitutes. Thus, it is redesign of refrigeration equipment for rule. The transition scenario in the cost unclear how it might result in both alternative, flammable refrigerants analysis reflects a direct compliance cumulative regulatory burden together and for new foam blowing agents and cost method and does not assume the with this rule. Equipment designed for needed third-party testing. regulated community chooses higher- using the refrigerants in that rule is not Commenters stated that the proposed cost solutions where known less costly affected by this rule, which concerns deadlines would create an extreme solutions exist. The scenarios analyzed different refrigerants. Finally, that rule burden, particularly on small in the avoided GHG emissions analysis also has an exemption from businesses; that part supplies needed for reflect possible transitions for requirements under section 608 of the compliance are not offered in the United compliance based on considerations of CAA that will reduce regulatory burden. States; and that the transition is a the market and activity towards lower- Comment: Danfoss commented that complicated undertaking that cannot be GWP solutions. While the emission several of the refrigerants listed as performed in 18 months. reductions have been quantified, they Response: EPA disagrees that it acceptable in the rule titled Listing of have not been monetized. Thus, higher should align the timelines in this rule Substitutes for Refrigeration and Air or lower GHG emission reductions do Conditioning and Revision of the with the EU timelines. The EU Venting Prohibition for Certain regulations are based upon different 103 ICF, 2015a. Revised Cost Analysis for Refrigerant Substitutes are severely authority from the SNAP program and Regulatory Changes to the Listing Status of High- restricted by building codes and would we must decide upon timelines based GWP Alternatives. July 2015. not be acceptable for use in most areas upon the availability of alternatives in 104 ICF, 2015b. Economic Impact Screening of the U.S, mainly due to their the United States. Concerning the Analysis for Regulatory Changes to the Listing Status of High-GWP Alternatives—Revised. July flammability. Danfoss stated they suggestion that EPA has deferred to 2015. believe that the proposed replacement other regulations, we note that there are 105 EPA, 2015. Climate Benefits of the SNAP refrigerants are not able to be used as several key differences. As an initial Program Status Change Rule, July 2015.

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not necessarily correlate to higher or respect to HFCs, will impact relationship between the national lower costs due to the different manufacturers of some consumer and government and the states, or on the assumptions and methodologies used in technical aerosol products, retail food distribution of power and the different analyses. However, the refrigeration equipment, vending responsibilities among the various transitions assumed in the lower, less machines, motor vehicles, and products levels of government. containing phenolic, polyisocyanurate, aggressive scenario here are similar to F. Executive Order 13175: Consultation polyolefin, PU, and polystyrene foams. the transitions assumed in the cost and Coordination With Indian Tribal The requirements of this final rule with analysis. Governments To extend the assessment to all-sized respect to HCFCs could theoretically businesses potentially affected by the affect manufacturers of aerosols, foams, This action does not have tribal rulemaking, EPA conducted an analysis industrial cleaning solvents, fire implications, as specified in EO 13175. on costs to all-sized businesses building suppressants, and adhesives, coatings, It will not have substantial direct effects on the approach taken to estimate and inks; however, due to existing on tribal governments, on the potential economic impacts on small regulations that restrict the use of relationship between the Federal businesses. Using a 7% discount rate, HCFCs in these products, no actual government and Indian tribes, or on the total annualized compliance costs impact is expected. In some uses, there distribution of power and across affected businesses are estimated is no significant impact of the final rule responsibilities between the Federal to range from $28.0 million to $50.6 because the substitutes proposed to be government and Indian tribes. Thus, million; total annual savings are prohibited are not widely used (e.g., use Executive Order 13175 does not apply estimated to be about $19.3 million. of HFC–134a as a propellant in to this action. Using a 3% discount rate, total consumer aerosol products, use of HFC– G. Executive Order 13045: Protection of annualized compliance costs across 134a as a foam blowing agent in various Children From Environmental Health affected businesses are estimated to polyurethane foams). A significant and Safety Risks range from $19.5 million to $37.8 portion of the businesses regulated This action is not subject to Executive million, total annual savings are under this rule are not small businesses Order 13045 (62 FR 19885, April 23, estimated be about $19.3 million. (e.g., car manufacturers, appliance 1997) because it is not economically EPA conducted an analysis on the manufacturers). About 500,000 small significant as defined in EO 12866, and potential avoided GHG emissions businesses could be subject to the rule, because the environmental health or associated with implementation of this although more than 99% of those safety risks addressed by this action do final rule. The emissions avoided from businesses are expected to experience not present a disproportionate risk to this final rule are estimated to be 26 to zero compliance costs because other children. This action restricts the use of 31 MMTCO eq in 2020. The avoided available substitutes for supermarket 2 certain substitutes that have greater emissions are estimated to be 54 to 64 refrigeration systems and condensing overall risks for human health and the MMTCO eq in 2025 and 78 to 101 units have costs similar to those of the 2 environment, primarily due to their MMTCO2eq in 2030 (EPA, 2015b) . refrigerants listed as unacceptable. For those small businesses with compliance high global warming potential. The IX. Statutory and Executive Order costs, impacts are estimated to range reduction in GHG emissions would Reviews from 0% to 48% of annual sales, with provide climate benefits for all people, Additional information about these approximately 57 businesses expected including benefits for children and statutes and Executive Orders can be to experience an impact of 3.0% of future generations. found at www2.epa.gov/laws- annual sales or more. Details of this H. Executive Order 13211: Actions That regulations/laws-and-executive-orders. analysis are presented in the document, Significantly Affect Energy Supply, Economic Impact Screening Analysis for Distribution, or Use A. Executive Order 12866: Regulatory Regulatory Changes to the Listing Status Planning and Review and Executive of High–GWP Alternatives—Revised This action is not a ‘‘significant Order 13563: Improving Regulation and (ICF, 2015b). In our analysis, we found energy action’’ as defined in Executive Regulatory Review that while some small businesses may Order 13211, (66 FR 28355 (May 22, This action is a significant regulatory experience significant costs, the number 2001)) because it is not likely to have a action that was submitted to the Office of small businesses that would significant adverse effect on the supply, of Management and Budget (OMB) for experience significant costs is not distribution, or use of energy. Aerosol review. Any changes made in response substantial. We have therefore uses are not related to the supply, to OMB recommendations have been concluded that this action will not have distribution, or use of energy. For the documented in the docket. a significant impact on a substantial end-uses that are related to energy number of small entities. effects, including refrigeration and air B. Paperwork Reduction Act conditioning and some rigid cell PU and This action does not impose any new D. Unfunded Mandates Reform Act polystyrene insulation foams, a number information collection burden. OMB has (UMRA) of alternatives are available to replace previously approved the information This action does not contain any those refrigerants and foam blowing collection requirements contained in the unfunded mandate as described in agents that are listed as unacceptable in existing regulations and has assigned UMRA, 2 U.S.C. 1531–1538, and does this action; many of the alternatives are OMB control number 2060–0226. This not significantly or uniquely affect small as energy-efficient or more energy- final rule contains no new requirements governments. This action imposes no efficient than the substitutes being listed for reporting or recordkeeping. enforceable duty on any state, local, or as unacceptable. As described in more tribal governments or the private sector. detail in this document, energy C. Regulatory Flexibility Act efficiency is influenced, but not I certify that this action will not have E. Executive Order 13132: Federalism determined, by the refrigerant. a significant economic impact on a This action does not have federalism Similarly, although foam blowing agents substantial number of small entities. implications. It will not have substantial influence the insulation properties of The requirements of this final rule with direct effects on the states, on the rigid cell foams, this also can vary due

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to other properties of the foam (e.g., Engineering Groups.’’ MACS Briefing, is accessible at http://www2.epa.gov/ thickness). Thus, we have concluded 2015. sites/production/files/documents/ _ _ _ that this rule is not likely to have any Arkema, 2013. Arkema is announcing the retrofit guideline august 2011.pdf. adverse energy effects. construction of production capacities for EPA, 2012a. Factsheet: Summary of new refrigerant fluorinated gas 1234yf, Refrigerant Reclamation 2000–2013. This I. National Technology Transfer and September 4, 2013. This document is document is accessible at: www.epa.gov/ Advancement Act accessible at: www.arkema.com/en/ spdpublc/title6/608/reclamation/ media/news/news-details/Arkema-is- recsum_merged.pdf. This action does not involve technical announcing-the-construction-of- EPA, 2012b. Regulatory Impact Analysis: standards. production-capacities-for-new- Final Rulemaking for 2017–2025 Light- refrigerant-fluorinated-gas-1234yf/ Duty Vehicle Greenhouse Gas Emission J. Executive Order 12898: Federal ?back=true. Standards and Corporate Average Fuel Actions To Address Environmental Ben and Jerry’s, 2014. Cleaner, Greener Economy Standards, EPA–420–R–12– Justice in Minority Populations and Freezers. This document is accessible at 016, August 2012. Low-Income Populations www.benjerry.com/values/how-we-do- EPA, 2013a. Global Mitigation of Non-CO2 business/cleaner-greener-freezers. Greenhouse Gases: 2010–2030, EPA has determined that this action CCAC, 2012. Technology Forum on Climate- September 2013. will not have disproportionately high Friendly Alternatives in Commercial EPA, 2013b. Benefits of Addressing HFCs and adverse human health or Refrigeration. Meeting Summary, under the Montreal Protocol, June, 2013. environmental effects on minority or December 8, 2012. EPA, 2014. Climate Benefits of the SNAP low-income populations because it Coca Cola, 2012. 2012/2013 GRI Report. This Program Status Change Rule, June 2014. increases the level of environmental document is accessible at: assets.coca- EPA, 2015a. Response to Comments on the protection for all affected populations colacompany.com/44/d4/e4eb8b6f SNAP Status Change Rule. July 2015. 4682804bdf6ba2ca89b8/2012-2013-gri- EPA, 2015b. Climate Benefits of the SNAP without having any disproportionately report.pdf. Program Status Change Rule, July 2015. high and adverse human health or Coca Cola, 2014. Coca-Cola Installs 1 EPA, 2015c. Inventory of U.S. Greenhouse environmental effects on any Millionth HFC-Free Cooler Globally, Gas Emissions and Sinks: 1990–2013, population, including any minority or Preventing 5.25MM Metric Tons of CO2, EPA Report 430–R–15–004. April 15, low-income population. This action January 22, 2014. This document is 2015. This document is accessible at: would prohibit a number of substances accessible at: www.coca- www.epa.gov/climatechange/ with ODPs or high GWPs. The reduction colacompany.com/press-center/press- ghgemissions/usinventoryreport.html. in ODS and GWP emissions would releases/coca-cola-installs-1-millionth- EPA, 2015d. Table of Alternatives for End- assist in restoring the stratospheric hfc-free-cooler-globally-preventing- Uses Considered in the Final Rule, 525mm-metrics-tons-of-co2. Protection of Stratospheric Ozone: ozone layer and provide climate Consumer Specialty Products Association Change of Listing Status for Certain benefits. (CSPA), 2012. 2011 Aerosol Pressurized Substitutes Under the Significant New K. Congressional Review Act (CRA) Products Survey—61st Annual Products Alternatives Policy Program. February, Survey. April 15, 2012. 2015. This action is subject to the CRA, and Cooling Post, 2014. Spanish store first to test FTOC, 2010. 2010 Report of the Foams the EPA will submit a rule report to new R404A ‘‘drop-in.’’ October 5, 2014. Technical Option Committee. each House of the Congress and to the This document is accessible at: Gaved, 2015. Emerson Climate Technologies Comptroller General of the United www.coolingpost.com/world-news/ Offers to Help Supply Chain Move to States. This action is not a ‘‘major rule’’ spanish-store-first-to-test-new-r404a- Lower-GWP Refrigerants. January 28, as defined by 5 U.S.C. 804(2). drop-in/. 2015. This document is accessible at: Daimler, 2014. ‘‘Climate Change: EU http://www.racplus.com/news/-emerson- X. References Scientists Say Daimler’s Safety Concerns climate-technologies-offers-to-help- About New Auto Refrigerant Are supply-chain-move-to-lower-gwp- This preamble references the Unwarranted,’’ Stephen Gardner, BNA refrigerants/8677708.article. following documents, which are also in Inc., Daily Environment Report, March GE, 2008. General Electric Significant New the Air Docket at the address listed in 11, 2014. This document is accessible at: Alternatives Policy Program Submission section I.B.1. Unless specified news.bna.com/deln/DELNWB/split_ to the United States Environmental otherwise, all documents are available display.adp?fedfid=4276 Protection Agency, October 2008. 0350&vname=dennotallissues&jd= Honeywell, 2014a. Aerosols Overview- electronically through the Federal ® Docket Management System, Docket a0e7p0q0q7&split=0. Honeywell Solstice Propellant. EPA Directive 2006/40/EC of the European meeting. February 27, 2014. #EPA–HQ–OAR–2014–0198. Parliament and of the Council of 17 May Honeywell, 2014b. Honeywell International AGC, 2014. AGC to Supply Honeywell with 2006 (EU MAC Directive). 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U.S. Environmental Protection Agency. Plattner, M. Tignor, S.K. Allen, J. UNEP, 2010. Report of the Rigid and Flexible May, 2014. Boschung, A. Nauels, Y. Xia, V. Bex and Foams Technical Options Committee, ICF, 2014c. Market Characterization of the P.M. Midgley (eds.)]. Cambridge 2010 Assessment. This document is U.S Commercial Refrigeration Industry. University Press, Cambridge, United accessible at: ozone.unep.org/ Prepared for the U.S. Environmental Kingdom and New York, NY, USA. Assessment_Panels/TEAP/Reports/ Protection Agency. May, 2014. IPCC/TEAP, 2005. Special Report: FTOC/FTOC-2010-Assessment- ICF, 2014d. Market Characterization of the Safeguarding the Ozone Layer and the Report.pdf. Motor Vehicle Air Conditioning Global Climate System: Issues Related to UNEP, 2011. HFCs: A Critical Link in Industry. Prepared for the U.S. Hydrofluorocarbons and Protecting Climate and the Ozone Layer, Environmental Protection Agency. May, Perfluorocarbons (Cambridge Univ Press, A UNEP Synthesis Report. November, 2014. New York). 2011. This document is accessible at: ICF, 2014e. Assessment of the Potential ITW Polymers Sealants, 2014. Comments of www.unep.org/dewa/portals/67/pdf/ Impact of Hydrocarbon Refrigerants on ITW Polymers Sealants North America HFC_report.pdf. Ground Level Ozone Concentrations. on Proposed SNAP Status Change Rule. UNEP, 2013. Report of the Technology and February, 2014. October 15, 2014. Docket ID EPA–HQ– Economic Assessment Panel, Volume 2: ICF, 2014f. Economic Impact Screening OAR–2014–0198–0071. Decision XXIV/7 Task Force Report, Analysis for Regulatory Options to Montzka, S.A.: HFCs in the Atmosphere: Additional Information on Alternatives Change Listing Status of High-GWP Concentrations, Emissions and Impacts, to ODS. September, 2013. This document Alternatives. June 2014. ASHRAE/NIST Conference 2012. is accessible at: conf.montreal- ICF, 2014g. Revised Preliminary Cost- Nelson, 2013. 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HCs Gaining Market Air pollution control, Incorporation by www.ipcc.ch/publications_and_data/ Prominence in US—View from the reference, Recycling, Reporting and ar4/wg1/en/contents.html. NAFEM Show—Part 1, February 18, recordkeeping requirements, IPCC, 2013: Annex II: Climate System 2013. This document is accessible at Stratospheric ozone layer. Scenario Tables [Prather, M., G. Flato, P. http://www.hydrocarbons21.com/news/ Dated: July 2, 2015. Friedlingstein, C. Jones, J.-F. Lamarque, viewprintable/3891. H. Liao and P. Rasch (eds.)]. In: Climate Shecco, 2015. New Regulations Inspire Gina McCarthy, Change 2013: The Physical Science Hydrocarbon Displays at U.S. NAFEM Administrator. Basis. Contribution of Working Group I Show, February 24, 2015. This document to the Fifth Assessment Report of the is accessible at http:// For the reasons stated in the Intergovernmental Panel on Climate www.hydrocarbons21.com/news/ preamble, 40 CFR part 82 is amended as Change [Stocker, T.F., D. Qin, G.-K. viewprintable/6143. follows:

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PART 82—PROTECTION OF Subpart G—Significant New ■ b. By adding a new entry at the bottom STRATOSPHERIC OZONE Alternatives Policy Program of the table ‘‘Refrigerants—Acceptable Subject to Narrowed Use Limits’’. ■ 1. The authority citation for part 82 ■ 2. Appendix B to subpart G of part 82 ■ c. By adding three new entries at the continues to read as follows: is amended as follows: end of the table titled ‘‘Refrigerants— Unacceptable Substitutes’’. ■ Authority: 42 U.S.C. 7414, 7601, 7671– a. By removing the first entry and The revisions and additions read as 7671q. adding four entries in its place in the follows: table titled ‘‘Refrigerants—Acceptable Subject to Use Conditions’’. Appendix B to Subpart G of Part 82— Substitutes Subject to Use Restrictions and Unacceptable Substitutes REFRIGERANTS—ACCEPTABLE SUBJECT TO USE CONDITIONS

Application Substitute Decision Conditions Comments

CFC–12 Automobile Motor HFC–134a .... Acceptable subject to use conditions, for —must be used with unique EPA is concerned that the existence of Vehicle Air Conditioning passenger cars and light-duty trucks fittings. several substitutes in this end-use may (New Equipment/NIKs manufactured for Model Year 2020 or —must be used with de- increase the likelihood of significant re- only). earlier, and for vehicles other than pas- tailed labels. frigerant cross-contamination and po- senger cars or light-duty trucks. tential failure of both air conditioning systems and recovery/recycling equip- ment. CFC–12 Automobile Motor HCFC Blend Acceptable subject to use conditions, for —must be used with unique EPA is concerned that the existence of Vehicle Air Conditioning Beta (R– passenger cars and light-duty trucks fittings. several substitutes in this end-use may (New Equipment/NIKs 416A). manufactured for Model Year 2016 or —must be used with de- increase the likelihood of significant re- only). earlier, and for vehicles other than pas- tailed labels. frigerant cross-contamination and po- senger cars or light-duty trucks. tential failure of both air conditioning systems and recovery/recycling equip- ment. CFC–12 Automobile Motor R–401C ...... Acceptable subject to use conditions ...... —must be used with unique EPA is concerned that the existence of Vehicle Air Conditioning fittings. several substitutes in this end-use may (New Equipment/NIKs —must be used with de- increase the likelihood of significant re- only). tailed labels. frigerant cross-contamination and po- tential failure of both air conditioning systems and recovery/recycling equip- ment. CFC–12 Automobile Motor HFC–134a, Acceptable subject to use conditions ...... —must be used with unique EPA is concerned that the existence of Vehicle Air Conditioning R–401C, fittings. several substitutes in this end-use may (Retrofit Equipment only). HCFC —must be used with de- increase the likelihood of significant re- Blend Beta tailed labels. frigerant cross-contamination and po- (R–416A). —all CFC–12 must be re- tential failure of both air conditioning moved from the system systems and recovery/recycling equip- prior to retrofitting. ment. No distinction is made between Refer to the text for a full ‘‘retrofit’’ and ‘‘drop-in’’ refrigerants; ret- description. rofitting a car to use a new refrigerant includes all procedures that result in the air conditioning system using a new re- frigerant.

*******

REFRIGERANTS—ACCEPTABLE SUBJECT TO NARROWED USE LIMITS

End-use Substitute Decision Comments

******* Motor vehicle air condi- HFC–134a ...... Acceptable for use in Vehicle manufacturers must document their determina- tioning (new equipment Model Year (MY) 2021 tion that the infrastructure is not in place for each in passenger cars and through MY 2025 pas- country to which they plan to export vehicles and light-duty trucks only). senger cars and light- must retain the documentation in their files for at duty trucks destined for least five years after date of its creation for the pur- export, where reasonable pose of demonstrating compliance. efforts have been made Documentation is to include descriptions of: to ascertain that other al- • Products in which the substitute is needed; ternatives are not tech- • Substitutes examined and rejected for the destina- nically feasible because tion country; of lack of infrastructure • Reason for rejection of other alternatives; and for servicing with alter- • Anticipated date other substitutes will be available native refrigerants in the and projected date of transition in the destination destination country. country.

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REFRIGERANTS—UNACCEPTABLE SUBSTITUTES

End-use Substitute Decision Comments

******* Motor vehicle air condi- HFC–134a ...... Unacceptable as of Model HFC–134a has a Chemical Abstracts Service Registry tioning (new equipment Year 2021 except where Number (CAS Reg. No.) of 811–97–2 and it is also in passenger cars and allowed under narrowed known by the name 1,1,1,2-tetrafluoropropane. light-duty trucks only). use limit. HFC–134a has a GWP of 1,430. Other substitutes will be available for this end-use with lower overall risk to human health and the environment by the status change date. This listing does not prohibit the servicing or replace- ment of motor vehicle air conditioning systems man- ufactured to use HFC–134a. Motor vehicle air condi- R–406A, R–414A (HCFC Unacceptable as of Model These refrigerants all contain HCFCs. They have tioning (new equipment Blend Xi, GHG-X4), R– Year 2017. GWPs ranging from 1,080 to 2,340 and ODPs rang- in passenger cars and 414B (HCFC Blend Omi- ing from 0.008 to 0.056. Other substitutes will be light-duty trucks only). cron), HCFC Blend Delta available for this end-use with lower overall risk to (Free Zone), Freeze 12, human health and the environment by the status GHG-X5, HCFC Blend change date. Lambda (GHG-HP), R– 416A (FRIGC FR-12, HCFC Blend Beta). Motor vehicle air condi- SP34E, R–426A (RS-24, Unacceptable as of Model These blends have GWPs ranging from approximately tioning (new equipment new formulation). Year 2017. 1,410 to 1,510. Other substitutes will be available for in passenger cars and this end-use with lower overall risk to human health light-duty trucks only). and the environment by the status change date.

■ 3. Appendix D to subpart G of part 82 In addition, the use of a) R–406A/ as substitutes for CFC–12 in MVACs, is amended by revising the third ‘‘GHG’’/‘‘McCool’’, ‘‘HCFC Blend must meet the following conditions. paragraph to read as follows: Lambda’’/‘‘GHG-HP’’, R–414A/‘‘HCFC * * * * * Blend Xi’’/‘‘GHG-X4/‘‘Autofrost’’/ Appendix D to Subpart G of Part 82— ■ ‘‘Chill-It’’, R–414B/‘‘Hot Shot’’/‘‘Kar 4. Appendix U to subpart G of part 82 Substitutes Subject to Use Restrictions is added to read as follows: and Unacceptable Substitutes Kool’’, and R–416A/‘‘HCFC Blend Beta’’/‘‘FREEZE 12’’ as CFC–12 Appendix U to Subpart G of Part 82— Summary of Decisions substitutes in retrofitted MVACs, and b) Unacceptable Substitutes and Refrigeration and Air Conditioning all refrigerants submitted for, and listed Substitutes Subject to Use Restrictions Sector Acceptable Subject to Use in, subsequent Notices of Acceptability Listed in the July 20, 2015 Final Rule, Conditions Effective August 19, 2015 * * * * *

AEROSOLS—UNACCEPTABLE SUBSTITUTES

End-use Substitute Decision Further information

Propellants ...... HFC–125 ...... Unacceptable as of January 1, HFC–125 has a Chemical Abstracts Service Registry Number (CAS 2016. Reg. No.) of 354–33–6 and it is also known by the name 1,1,1,2,2- pentafluoropropane. HFC–125 has a GWP of 3,500. Other sub- stitutes will be available for this end-use with lower overall risk to human health and the environment by the status change date. Products using this propellant that are manufactured prior to January 1, 2016 may be sold, imported, exported, distributed and used after that date. Propellants ...... HFC–134a ...... Unacceptable as of July 20, 2016, HFC–134a has a Chemical Abstracts Service Registry Number (CAS except uses listed as accept- Reg. No.) of 811–97–2 and it is also known by the name 1,1,1,2- able, subject to use conditions. tetrafluoropropane. HFC–134a has a GWP of 1,430. Other sub- stitutes will be available for this end-use with lower overall risk to human health and the environment by the status change date. Products using this propellant that are manufactured prior to July 20, 2016 may be sold, imported, exported, distributed and used after that date. Propellants ...... HFC–227ea and Unacceptable as of July 20, 2016, HFC–227ea has a Chemical Abstracts Service Registry Number blends of except uses listed as accept- (CAS Reg. No.) of 431–89–0 and it is also known by the name HFC–134a and able, subject to use conditions. 1,1,1,2,3,3,3-heptafluoropropane. HFC–134a has a Chemical Ab- HFC–227ea. stracts Service Registry Number (CAS Reg. No.) of 811–97–2 and it is also known by the name 1,1,1,2-tetrafluoropropane. HFC–227ea and HFC–134a have GWPs of 3,220 and 1,430, respec- tively. Other substitutes will be available for this end-use with lower overall risk to human health and the environment by the status change date.

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AEROSOLS—UNACCEPTABLE SUBSTITUTES—Continued

End-use Substitute Decision Further information

Products using these propellants that are manufactured prior to July 20, 2016 may be sold, imported, exported, distributed and used after that date. Propellants ...... HCFC–22 and Unacceptable effective September Use or introduction into interstate commerce of virgin HCFC–22 and HCFC–142b. 18, 2015. HCFC–142b for aerosols is prohibited as of January 1, 2010 under EPA’s regulations at 40 CFR part 82 subpart A. These propellants have ozone depletion potentials of 0.055 and 0.065, respectively. Solvents ...... HCFC–141b and Unacceptable effective September Use or introduction into interstate commerce of virgin HCFC–141b for blends thereof. 18, 2015. aerosols is prohibited as of January 1, 2015 under EPA’s regula- tions at 40 CFR part 82 subpart A. HCFC–141b has an ozone de- pletion potential of 0.11.

SUBSTITUTES ACCEPTABLE SUBJECT TO USE CONDITIONS

End-use Substitute Decision Use conditions Further information

Propellants ...... HFC–134a ...... Acceptable The classes of products listed below are acceptable for use from HFC–134a has a Chem- subject to July 20, 2016 through December 31, 2017 and are unaccept- ical Abstracts Service use condi- able thereafter. Registry Number (CAS tions. • products for functional testing of smoke detectors ...... Reg. No.) of 811–97–2 • products for which new formulations require governmental and it is also known by review, including: EPA pesticide registration, approval for the name 1,1,1,2- conformance with military or space agency specifications, tetrafluoropropane. or FDA approval (other than MDIs). HFC–134a has a GWP The classes of products listed below are acceptable for use and of 1,430. Use is al- other uses are unacceptable as of July 20, 2016: lowed for the specified • metered dose inhalers approved by the U.S. Food and uses because of the Drug Administration for medical purposes. technical and safety • cleaning products for removal of grease, flux and other demands in these ap- soils from electrical equipment or electronics. plications. • refrigerant flushes ...... Aerosol products using • products for sensitivity testing of smoke detectors ...... this propellant that are • lubricants and freeze sprays for electrical equipment or manufactured prior to electronics. July 20, 2016, may be sold, imported, ex- ported, distributed and used after that date. • sprays for aircraft maintenance. • sprays containing corrosion preventive compounds used in the maintenance of aircraft, electrical equipment or electronics, or military equipment. • pesticides for use near electrical wires or in aircraft, in total re- lease insecticide foggers, or in certified organic use pesticides for which EPA has specifically disallowed all other lower-GWP propellants. • mold release agents and mold cleaners. • lubricants and cleaners for spinnerettes for synthetic fabrics. • duster sprays specifically for removal of dust from photographic negatives, semiconductor chips, specimens under electron mi- croscopes, and energized electrical equipment. • adhesives and sealants in large canisters. • document preservation sprays. • wound care sprays. • topical coolant sprays for pain relief. • products for removing bandage adhesives from skin. Propellants ...... HFC–227ea Acceptable Acceptable for use in metered dose inhalers approved by the HFC–227ea has a and blends subject to U.S. Food and Drug Administration for medical purposes and Chemical Abstracts of HFC– use condi- unacceptable for all other uses as of July 20, 2016. Service Registry Num- 227ea and tions. ber (CAS Reg. No.) of HFC–134a. 431–89–0 and it is also known by the name 1,1,1,2,3,3,3- heptafluoropropane. HFC–227ea has a GWP of 3,220.

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SUBSTITUTES ACCEPTABLE SUBJECT TO USE CONDITIONS—Continued

End-use Substitute Decision Use conditions Further information

Aerosol products using this propellant that are manufactured prior to July 20, 2016 may be sold, imported, ex- ported, distributed and used after that date.

REFRIGERATION AND AIR CONDITIONING—UNACCEPTABLE SUBSTITUTES

End-use Substitute Decision Further information

Retail food refrigeration HFC–227ea, R–404A, R–407B, R–421B, R– Unacceptable as of These refrigerants have GWPs ranging from (supermarket sys- 422A, R–422C, R–422D, R–428A, R– January 1, 2017. 2,729 to 3,985. Other substitutes will be tems) (new). 434A, R–507A. available for this end-use with lower overall risk to human health and the environment by the status change date. Retail food refrigeration R–404A, R–407B, R–421B, R–422A, R– Unacceptable as of These refrigerants have GWPs ranging from (supermarket sys- 422C, R–422D, R–428A, R–434A, R–507A. July 20, 2016. 2,729 to 3,985. Other substitutes will be tems) (retrofit). available for this end-use with lower overall risk to human health and the environment by the status change date. Retail food refrigeration HFC–227ea, R–404A, R–407B, R–421B, R– Unacceptable as of These refrigerants have GWPs ranging from (remote condensing 422A, R–422C, R–422D, R–428A, R– January 1, 2018. 2,729 to 3,985. Other substitutes will be units) (new). 434A, R–507A. available for this end-use with lower overall risk to human health and the environment by the status change date. Retail food refrigeration R–404A, R–407B, R–421B, R–422A, R– Unacceptable as of These refrigerants have GWPs ranging from (remote condensing 422C, R–422D, R–428A, R–434A, R–507A. July 20, 2016. 2,729 to 3,985. Other substitutes will be units) (retrofit). available for this end-use with lower overall risk to human health and the environment by the status change date. Retail food refrigeration FOR12A, FOR12B, HFC–134a, HFC–227ea, Unacceptable as of These refrigerants have GWPs ranging from (stand-alone me- KDD6, R–125/290/134a/600a (55.0/1.0/ January 1, 2019. approximately 900 to 3,985. Other sub- dium-temperature 42.5/1.5), R–404A, R–407A, R–407B, R– stitutes will be available for this end-use units with a com- 407C, R–407F, R–410A, R–410B, R–417A, with lower overall risk to human health and pressor capacity R–421A, R–421B, R–422A, R–422B, R– the environment by the status change date. below 2,200 Btu/hr 422C, R–422D, R–424A, R–426A, R– ‘‘Medium-temperature’’ refers to equipment and not containing a 428A, R–434A, R–437A, R–438A, R–507A, that maintains food or beverages at tem- flooded evaporator) RS-24 (2002 formulation), RS-44 (2003 for- peratures above 32°F (0 °C). (new). mulation), SP34E, THR-03. Retail food refrigeration FOR12A, FOR12B, HFC–134a, HFC–227ea, Unacceptable as of These refrigerants have GWPs ranging from (stand-alone me- KDD6, R–125/290/134a/600a (55.0/1.0/ January 1, 2020. approximately 900 to 3,985. Other sub- dium-temperature 42.5/1.5), R–404A, R–407A, R–407B, R– stitutes will be available for this end-use units with a com- 407C, R–407F, R–410A, R–410B, R–417A, with lower overall risk to human health and pressor capacity R–421A, R–421B, R–422A, R–422B, R– the environment by the status change date. below 2,200 Btu/hr 422C, R–422D, R–424A, R–426A, R– ‘‘Medium-temperature’’ refers to equipment and containing a 428A, R–434A, R–437A, R–438A, R–507A, that maintains food or beverages at tem- flooded evaporator) RS-24 (2002 formulation), RS-44 (2003 for- peratures above 32°F (0 °C). (new). mulation), SP34E, THR-03. Retail food refrigeration FOR12A, FOR12B, HFC–134a, HFC–227ea, Unacceptable as of These refrigerants have GWPs ranging from (stand-alone me- KDD6, R–125/290/134a/600a (55.0/1.0/ January 1, 2020. approximately 900 to 3,985. Other sub- dium-temperature 42.5/1.5), R–404A, R–407A, R–407B, R– stitutes will be available for this end-use units with a com- 407C, R–407F, R–410A, R–410B, R–417A, with lower overall risk to human health and pressor capacity R–421A, R–421B, R–422A, R–422B, R– the environment by the status change date. equal to or greater 422C, R–422D, R–424A, R–426A, R– ‘‘Medium-temperature’’ refers to equipment than 2,200 Btu/hr) 428A, R–434A, R–437A, R–438A, R–507A, that maintains food or beverages at tem- (new). RS-24 (2002 formulation), RS-44 (2003 for- peratures above 32°F (0 °C). mulation), SP34E, THR-03. Retail food refrigeration HFC–227ea, KDD6, R–125/290/134a/600a Unacceptable as of These refrigerants have GWPs ranging from (stand-alone low- (55.0/1.0/42.5/1.5), R–404A, R–407A, R– January 1, 2020. approximately 1,800 to 3,985. Other sub- temperature units) 407B, R–407C, R–407F, R–410A, R–410B, stitutes will be available for this end-use (new). R–417A, R–421A, R–421B, R–422A, R– with lower overall risk to human health and 422B, R–422C, R–422D, R–424A, R– the environment by the status change date. 428A, R–434A, R–437A, R–438A, R–507A, ‘‘Low-temperature’’ refers to equipment that RS–44 (2003 formulation). maintains food or beverages at tempera- tures at or below 32°F (0 °C).

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REFRIGERATION AND AIR CONDITIONING—UNACCEPTABLE SUBSTITUTES—Continued

End-use Substitute Decision Further information

Retail food refrigeration R–404A, R–507A ...... Unacceptable as of These refrigerants have GWPs of approxi- (stand-alone units July 20, 2016. mately 3,922 and 3,985. Other substitutes only) (retrofit). will be available for this end-use with lower overall risk to human health and the envi- ronment by the status change date. Vending machines FOR12A, FOR12B, HFC–134a, KDD6, R– Unacceptable as of These refrigerants have GWPs ranging from (new only). 125/290/134a/600a (55.0/1.0/42.5/1.5), R– January 1, 2019. approximately 1,100 to 3,985. Other sub- 404A, R–407C, R–410A, R–410B, R–417A, stitutes will be available for this end-use R–421A, R–422B, R–422C, R–422D, R– with lower overall risk to human health and 426A, R–437A, R–438A, R–507A, RS-24 the environment by the status change date. (2002 formulation), SP34E. Vending machines (ret- R–404A, R–507A...... Unacceptable as of These refrigerants have GWPs of approxi- rofit only). July 20, 2016. mately 3,922 and 3,985. Other substitutes will be available for this end-use with lower overall risk to human health and the envi- ronment by the status change date.

FOAM BLOWING AGENTS—SUBSTITUTES ACCEPTABLE SUBJECT TO NARROWED USE LIMITS

End-use Substitute Decision Narrowed use limits Further information

Rigid Polyurethane: Ap- HFC–134a, HFC– Acceptable Subject to Acceptable from January 1, 2020, Users are required to document and retain the pliance. 245fa, HFC–365mfc Narrowed Use Limits. until January 1, 2022, only in results of their technical investigation of alter- and blends thereof; military or space- and aero- natives for the purpose of demonstrating Formacel TI, and nautics-related applications compliance. Information should include de- Formacel Z-6. where reasonable efforts have scriptions of: been made to ascertain that • Process or product in which the sub- other alternatives are not tech- stitute is needed; nically feasible due to perform- • Substitutes examined and rejected; ance or safety requirements. • Reason for rejection of other alter- natives, e.g., performance, technical or safety standards; and/or • Anticipated date other substitutes will be available and projected time for switch- ing. Rigid Polyurethane: HFC–134a, HFC– Acceptable Subject to Acceptable from January 1, 2020, Users are required to document and retain the Commercial Refrigera- 245fa, HFC–365mfc, Narrowed Use Limits. until January 1, 2022, only in results of their technical investigation of alter- tion and Sandwich and blends thereof; military or space- and aero- natives for the purpose of demonstrating Panels. Formacel TI, and nautics-related applications compliance. Information should include de- Formacel Z-6. where reasonable efforts have scriptions of: been made to ascertain that • Process or product in which the sub- other alternatives are not tech- stitute is needed; nically feasible due to perform- • Substitutes examined and rejected; ance or safety requirements. • Reason for rejection of other alter- natives, e.g., performance, technical or safety standards; and/or • Anticipated date other substitutes will be available and projected time for switch- ing. Flexible Polyurethane .... HFC–134a, HFC– Acceptable Subject to Acceptable from January 1, 2017, Users are required to document and retain the 245fa, HFC–365mfc, Narrowed Use Limits. until January 1, 2022, only in results of their technical investigation of alter- and blends thereof. military or space- and aero- natives for the purpose of demonstrating nautics-related applications compliance. Information should include de- where reasonable efforts have scriptions of: been made to ascertain that • Process or product in which the sub- other alternatives are not tech- stitute is needed; nically feasible due to perform- • Substitutes examined and rejected; ance or safety requirements. • Reason for rejection of other alter- natives, e.g., performance, technical or safety standards; and/or • Anticipated date other substitutes will be available and projected time for switch- ing. Rigid Polyurethane: HFC–134a, HFC– Acceptable Subject to Acceptable from January 1, 2019, Users are required to document and retain the Slabstock and Other. 245fa, HFC–365mfc Narrowed Use Limits. until January 1, 2022, only in results of their technical investigation of alter- and blends thereof; military or space- and aero- natives for the purpose of demonstrating Formacel TI, and nautics-related applications compliance. Information should include de- Formacel Z-6. where reasonable efforts have scriptions of: been made to ascertain that • Process or product in which the sub- other alternatives are not tech- stitute is needed; nically feasible due to perform- • Substitutes examined and rejected; ance or safety requirements. • Reason for rejection of other alter- natives, e.g., performance, technical or safety standards; and/or • Anticipated date other substitutes will be available and projected time for switch- ing.

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FOAM BLOWING AGENTS—SUBSTITUTES ACCEPTABLE SUBJECT TO NARROWED USE LIMITS—Continued

End-use Substitute Decision Narrowed use limits Further information

Rigid Polyurethane and HFC–134a, HFC– Acceptable Subject to Acceptable from January 1, 2017, Users are required to document and retain the Polyisocyanurate 245fa, HFC–365mfc Narrowed Use Limits. until January 1, 2022, only in results of their technical investigation of alter- Laminated Boardstock. and blends thereof. military or space- and aero- natives for the purpose of demonstrating nautics-related applications compliance. Information should include de- where reasonable efforts have scriptions of: been made to ascertain that • Process or product in which the sub- other alternatives are not tech- stitute is needed; nically feasible due to perform- • Substitutes examined and rejected; ance or safety requirements. • Reason for rejection of other alter- natives, e.g., performance, technical or safety standards; and/or • Anticipated date other substitutes will be available and projected time for switch- ing. Rigid Polyurethane: Ma- HFC–134a, HFC– Acceptable Subject to Acceptable from January 1, 2020, Users are required to document and retain the rine Flotation Foam. 245fa, HFC–365mfc Narrowed Use Limits. until January 1, 2022, only in results of their technical investigation of alter- and blends thereof; military or space- and aero- natives for the purpose of demonstrating Formacel TI, and nautics-related applications compliance. Information should include de- Formacel Z-6. where reasonable efforts have scriptions of: been made to ascertain that • Process or product in which the sub- other alternatives are not tech- stitute is needed; nically feasible due to perform- • Substitutes examined and rejected; ance or safety requirements. • Reason for rejection of other alter- natives, e.g., performance, technical or safety standards; and/or • Anticipated date other substitutes will be available and projected time for switch- ing. Polystyrene: Extruded HFC–134a, HFC– Acceptable Subject to Acceptable from January 1, 2017, Users are required to document and retain the Sheet. 245fa, HFC–365mfc, Narrowed Use Limits. until January 1, 2022, only in results of their technical investigation of alter- and blends thereof; military or space- and aero- natives for the purpose of demonstrating Formacel TI, and nautics-related applications compliance. Information should include de- Formacel Z-6. where reasonable efforts have scriptions of: been made to ascertain that • Process or product in which the sub- other alternatives are not tech- stitute is needed; nically feasible due to perform- • Substitutes examined and rejected; ance or safety requirements. • Reason for rejection of other alter- natives, e.g., performance, technical or safety standards; and/or • Anticipated date other substitutes will be available and projected time for switch- ing. Polystyrene: Extruded HFC–134a, HFC– Acceptable Subject to Acceptable from January 1, 2021, Users are required to document and retain the Boardstock and Billet. 245fa, HFC–365mfc, Narrowed Use Limits. until January 1, 2022, only in results of their technical investigation of alter- and blends thereof; military or space- and aero- natives for the purpose of demonstrating Formacel TI, nautics-related applications compliance. Information should include de- Formacel B, and where reasonable efforts have scriptions of: Formacel Z-6. been made to ascertain that • Process or product in which the sub- other alternatives are not tech- stitute is needed; nically feasible due to perform- • Substitutes examined and rejected; ance or safety requirements. • Reason for rejection of other alter- natives, e.g., performance, technical or safety standards; and/or • Anticipated date other substitutes will be available and projected time for switch- ing. Integral Skin Poly- HFC–134a, HFC– Acceptable Subject to Acceptable from January 1, 2017, Users are required to document and retain the urethane. 245fa, HFC–365mfc, Narrowed Use Limits. until January 1, 2022, only in results of their technical investigation of alter- and blends thereof; military or space- and aero- natives for the purpose of demonstrating Formacel TI, and nautics-related applications compliance. Information should include de- Formacel Z-6. where reasonable efforts have scriptions of: been made to ascertain that • Process or product in which the sub- other alternatives are not tech- stitute is needed; nically feasible due to perform- • Substitutes examined and rejected; ance or safety requirements. • Reason for rejection of other alter- natives, e.g., performance, technical or safety standards; and/or • Anticipated date other substitutes will be available and projected time for switch- ing.

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FOAM BLOWING AGENTS—SUBSTITUTES ACCEPTABLE SUBJECT TO NARROWED USE LIMITS—Continued

End-use Substitute Decision Narrowed use limits Further information

Polyolefin ...... HFC–134a, HFC– Acceptable Subject to Acceptable from January 1, 2020, Users are required to document and retain the 245fa, HFC–365mfc, Narrowed Use Limits. until January 1, 2022, only in results of their technical investigation of alter- and blends thereof; military or space- and aero- natives for the purpose of demonstrating Formacel TI, and nautics-related applications compliance. Information should include de- Formacel Z-6. where reasonable efforts have scriptions of: been made to ascertain that • Process or product in which the sub- other alternatives are not tech- stitute is needed; nically feasible due to perform- • Substitutes examined and rejected; ance or safety requirements. • Reason for rejection of other alter- natives, e.g., performance, technical or safety standards; and/or • Anticipated date other substitutes will be available and projected time for switch- ing. Phenolic Insulation HFC–143a, HFC–134a, Acceptable Subject to Acceptable from January 1, 2017, Users are required to document and retain the Board and Bunstock. HFC–245fa, HFC– Narrowed Use Limits. until January 1, 2022, only in results of their technical investigation of alter- 365mfc, and blends military or space- and aero- natives for the purpose of demonstrating thereof. nautics-related applications compliance. Information should include de- where reasonable efforts have scriptions of: been made to ascertain that • Process or product in which the sub- other alternatives are not tech- stitute is needed; nically feasible due to perform- • Substitutes examined and rejected; ance or safety requirements. • Reason for rejection of other alter- natives, e.g., performance, technical or safety standards; and/or • Anticipated date other substitutes will be available and projected time for switch- ing.

UNACCEPTABLE SUBSTITUTES

End-use Substitute Decision Further information

All Foam Blowing End-uses HCFC–141b and blends Unacceptable effective HCFC–141b has an ozone depletion potential of 0.11 thereof. September 18, 2015. under the Montreal Protocol. EPA previously found HCFC–141b unacceptable in all foam blowing end- uses (appendix M to subpart G of 40 CFR part 82). HCFC–141b has an ozone depletion potential (ODP) of 0.11. All Foam Blowing end-uses HCFC–22, HCFC–142b, Unacceptable effective Use or introduction into interstate commerce of virgin and blends thereof. September 18, 2015. HCFC–22 and HCFC–142b for foam blowing is pro- hibited after January 1, 2010 under EPA’s regula- tions at 40 CFR part 82 subpart A unless used, re- covered, and recycled. These compounds have ODPs of 0.055 and 0.065, respectively. Flexible Polyurethane ...... HFC–134a, HFC–245fa, Unacceptable as of Janu- These foam blowing agents have global warming po- HFC–365mfc, and ary 1, 2017 except tentials (GWPs) ranging from 725 to 1,430. Other blends thereof. where allowed under a substitutes will be available for this end-use with narrowed use limit. lower overall risk to human health and the environ- ment by the status change date. Polystyrene: Extruded Sheet HFC-134a, HFC–245fa, Unacceptable as of Janu- These foam blowing agents have GWPs ranging from HFC–365mfc, and ary 1, 2017 except higher than 370 to approximately 1,500. Other sub- blends thereof; Formacel where allowed under a stitutes will be available for this end-use with lower TI, and Formacel Z-6. narrowed use limit. overall risk to human health and the environment by the status change date. Phenolic Insulation Board HFC-143a, HFC–134a, Unacceptable as of Janu- These foam blowing agents have GWPs ranging from and Bunstock. HFC–245fa, HFC– ary 1, 2017 except 725 to 4,470. Other substitutes will be available for 365mfc, and blends where allowed under a this end-use with lower overall risk to human health thereof. narrowed use limit. and the environment by the status change date. Integral Skin Polyurethane .. HFC–134a, HFC–245fa, Unacceptable as of Janu- These foam blowing agents have GWPs ranging from HFC–365mfc, and ary 1, 2017 except higher than 370 to approximately 1,500. Other sub- blends thereof; Formacel where allowed under a stitutes will be available for this end-use with lower TI, and Formacel Z-6. narrowed use limit. overall risk to human health and the environment by the status change date. Rigid Polyurethane: HFC–134a, HFC–245fa, Unacceptable as of Janu- These foam blowing agents have GWPs ranging from Slabstock and Other. HFC–365mfc and blends ary 1, 2019 except higher than 370 to approximately 1,500. Other sub- thereof; Formacel TI, where allowed under a stitutes will be available for this end-use with lower and Formacel Z-6. narrowed use limit. overall risk to human health and the environment by the status change date. Rigid Polyurethane and HFC–134a, HFC–245fa, Unacceptable as of Janu- These foam blowing agents have GWPs ranging from Polyisocyanurate Lami- HFC–365mfc and blends ary 1, 2017 except 725 to 1,430. Other substitutes will be available for nated Boardstock. thereof. where allowed under a this end-use with lower overall risk to human health narrowed use limit. and the environment by the status change date.

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UNACCEPTABLE SUBSTITUTES—Continued

End-use Substitute Decision Further information

Rigid Polyurethane: Marine HFC–134a, HFC–245fa, Unacceptable as of Janu- These foam blowing agents have GWPs ranging from Flotation Foam. HFC–365mfc and blends ary 1, 2020 except higher than 370 to approximately 1,500. Other sub- thereof; Formacel TI, where allowed under a stitutes will be available for this end-use with lower and Formacel Z-6;. narrowed use limit. overall risk to human health and the environment by the status change date. Rigid Polyurethane: Com- HFC–134a, HFC–245fa, Unacceptable as of Janu- These foam blowing agents have GWPs ranging from mercial Refrigeration and HFC–365mfc, and ary 1, 2020 except higher than 370 to approximately 1,500. Other sub- Sandwich Panels. blends thereof; Formacel where allowed under a stitutes will be available for this end-use with lower TI, and Formacel Z-6. narrowed use limit. overall risk to human health and the environment by the status change date. Rigid Polyurethane: Appli- HFC–134a, HFC–245fa, Unacceptable as of Janu- These foam blowing agents have GWPs ranging from ance. HFC–365mfc and blends ary 1, 2020 except higher than 370 to approximately 1,500. Other sub- thereof; Formacel TI, where allowed under a stitutes will be available for this end-use with lower and Formacel Z-6. narrowed use limit. overall risk to human health and the environment by the status change date. Polystyrene: Extruded HFC–134a, HFC–245fa, Unacceptable as of Janu- These foam blowing agents have GWPs ranging from Boardstock and Billet. HFC–365mfc, and ary 1, 2021 except higher than 140 to approximately 1,500. Other sub- blends thereof; Formacel where allowed under a stitutes will be available for this end-use with lower TI, Formacel B, and narrowed use limit. overall risk to human health and the environment by Formacel Z-6. the status change date. Polyolefin ...... HFC–134a, HFC–245fa, Unacceptable as of Janu- These foam blowing agents have GWPs ranging from HFC–365mfc, and ary 1, 2020 except higher than 370 to approximately 1,500. Other sub- blends thereof; Formacel where allowed under a stitutes will be available for this end-use with lower TI, and Formacel Z-6. narrowed use limit. overall risk to human health and the environment by the status change date.

FIRE SUPPRESSION AND EXPLOSION PROTECTION AGENTS—UNACCEPTABLE SUBSTITUTES

End-use Substitute Decision Further information

Total Flooding ...... HCFC–22 ...... Unacceptable effective Use or introduction into interstate commerce of virgin September 18, 2015. HCFC–22 for total flooding fire suppression and ex- plosion protection is prohibited as of January 1, 2010 under EPA’s regulations at 40 CFR part 82 subpart A. This chemical has an ozone depletion potential of 0.055.

STERILANTS—UNACCEPTABLE SUBSTITUTES

End-use Substitute Decision Further information

Sterilants ...... Blends containing HCFC– Unacceptable effective Use or introduction into interstate commerce of virgin 22. September 18, 2015. HCFC–22 for sterilants is prohibited as of January 1, 2010 under EPA’s regulations at 40 CFR part 82 subpart A. This chemical has an ozone depletion potential of 0.055.

ADHESIVES, COATINGS AND INKS—UNACCEPTABLE SUBSTITUTES

End-use Substitute Decision Further information

Adhesives, coatings and HCFC–141b and blends Unacceptable effective Use or introduction into interstate commerce of virgin inks. thereof. September 18, 2015. HCFC–141b for adhesives, coatings and inks is pro- hibited as of January 1, 2015 under EPA’s regula- tions at 40 CFR part 82 subpart A. This chemical has an ozone depletion potential of 0.11.

[FR Doc. 2015–17066 Filed 7–17–15; 8:45 am] BILLING CODE 6560–50–P

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Part III

Department of Justice

Drug Enforcement Administration Syed Jawed Akhtar-Zaidi, M.D.; Decision and Order; Notice

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DEPARTMENT OF JUSTICE Order authorized the Government to Exception One—The ALJ Arbitrarily seize any controlled substances it found and Capriciously Barred Respondent Drug Enforcement Administration at Respondent’s registered location, see From Presenting the Testimony of His [Docket No. 14–2] ALJ Ex. 1, at 4 (citation omitted); and Expert Witness, His Employees, and His pursuant to 21 U.S.C. 824(f), ‘‘[u]pon a Patients Syed Jawed Akhtar-Zaidi, M.D.; revocation order becoming final, all Respondent argues that the ALJ’s Decision and Order such controlled substances . . . shall be refusal to allow him to present forfeited to the United States’’ and ‘‘[a]ll testimony from his expert, Dr. Richard On February 10, 2014, Administrative right, title, and interest in such Law Judge (ALJ) Christopher B. McNeil Stieg, three of his employees, and his controlled substances . . . shall vest in patients, ‘‘was arbitrary, capricious, an issued the attached Recommended the United States upon a revocation 1 abuse of discretion, and otherwise not Decision. Both parties filed Exceptions order becoming final.’’ See also 21 CFR to the ALJ’s Recommended Decision. in accordance with law.’’ Resp. 1301.36(f)). Moreover, the Agency has Exceptions, at 1–2. While I find the Having reviewed the entire record, held that a registrant, who has been including the parties’ Exceptions, I have ALJ’s ruling denying Respondent the issued an Immediate Suspension Order, right to call Dr. Stieg to be problematic, decided to adopt the ALJ’s findings of cannot defeat the effect of this provision fact except as discussed below. I further for reasons explained below, I hold that by allowing his registration to expire. Respondent has not demonstrated that adopt the ALJ’s conclusions of law that: Meetinghouse Community Pharmacy, (1) Respondent issued prescriptions the ALJ committed prejudicial error. I Inc., 74 FR 10073, 10074 n.5 (2009). further find that Respondent has failed for controlled substances to three Accordingly, on May 8, 2015, the undercover officers outside the usual to demonstrate that the ALJ erred when former Administrator issued an Order he barred the employees and the course of professional practice and directing the parties to address whether which lacked a legitimate medical patients from testifying, let alone that the case was moot. Thereafter, both the error was prejudicial. purpose; parties filed responses asserting that the (2) Respondent violated Federal law case remains a live controversy, with The ALJ’s Ruling Barring Dr. Stieg’s when he issued controlled substance the Government specifically noting that Testimony prescriptions which did not include the various controlled substances including Respondent argues that even before patient’s address; (3) Respondent violated Ohio law Demerol, morphine sulfate, the proceeding was initiated, ‘‘the requiring that he ‘‘complete and hydrocodone, and midazolam were Government had several months in maintain accurate medical records seized from Respondent’s office during which to . . . obtain an expert witness’’ reflecting the physician’s examination, service of the Immediate Suspension and have the expert review the evidence evaluation, and treatment of [his] Order. Gov’t Response to Order, at 2. against him. Resp. Exceptions, at 2. By patients,’’ when, with respect to the The Government further represents that contrast, Respondent argues he ‘‘had a very limited period of time in which to three undercover officers, he ‘‘falsely there are no other proceedings pending . . . retain an expert and have the reported the extent and nature of his to determine title to the drugs and expert review the documents and files’’ examination of [them] and falsely therefore requests that I issue a final and form his opinion. Id. Noting that the reported the patients’ reports of pain’’; order to resolve this issue. Accordingly, I conclude that this ALJ ‘‘placed near complete reliance on (4) Respondent ‘‘failed to comply with proceeding presents the collateral the testimony of the Government’s the requirements of Ohio law applicable consequence of who has title to the expert,’’ id. at 3, Respondent contends to the treatment of chronic pain.’’ controlled substances seized by the R.D. 81–86. Finally, I adopt the ALJ’s Government. While I do not adopt the no court has ever questioned the Agency’s ultimate conclusions of law that the ALJ’s recommended order that I revoke interpretation that it is required to consider Government has met its prima facie (although not necessarily make findings with Respondent’s registration and deny any respect to) each of the public interest factors in a burden of showing that ‘‘Respondent’s pending application to renew or modify revocation proceeding. See Dewey C. MacKay, 664 continued . . . registration is his registration, I will affirm the F.3d 808, 816 (10th Cir. 2011) (noting, in revocation inconsistent with the public interest’’ issuance of the Immediate Suspension proceeding, that ‘‘[t]he agency is required to and that ‘‘Respondent has failed to rebut consider five factors ‘[i]n determining the public Order and declare that all right, title, interest’ ’’); id. at 819 (upholding agency’s the Government’s prima facie case.’’ Id. and interest in the seized drugs is determination that evidence that physician diverted at 87. forfeited to the United States. A controlled substances was relevant under both According to the ALJ’s Recommended discussion of Respondent’s Exceptions factors two and four); Morall v DEA, 412 F.3d 165, 173 (D.C. Cir. 2005) (noting, in revocation Decision, Respondent’s registration was follows.2 due to expire on June 30, 2014, and proceeding, that ‘‘[s]ection 823(f) provides the factors to be considered ‘[i]n determining the public according to the registration records of 2 The Government takes exception to the ALJ’s interest’ ’’ and listing all five factors). the Agency, of which I take official discussion of factor two and whether the Agency Thus, the issue has been conclusively decided. notice, see 5 U.S.C. 556(e), Respondent has properly applied it in revocation proceedings Because the ALJ’s decision is only a has not filed either a renewal or new because the factor refers only to ‘‘the applicant’s’’ recommendation, the Agency has no obligation to experience in dispensing controlled substances. See publish any portion of it, let alone that which application. While ordinarily, these R.D. at 54–58. The Government’s exception is well persists in re-arguing that which has been long findings would render a case moot, see taken. decided. See Iran Air v. Kugelman, 996 F.2d 1253, Ronald J. Riegel, 63 FR 67132, 67133 Pursuant to Congress’s direction in 21 U.S.C. 1260 (D.C. Cir. 1993) (quoting Joseph Zwerdling, (1998), this Agency has recognized that 824(a)(4) that the Agency may revoke a registration Reflections on the Role of an Administrative Law ‘‘upon a finding that the registrant . . . has Judge, 25 Admin. L. Rev. 9, 12–13 (1973) (an ALJ where a registrant is served with an committed such acts as would render his ‘‘ ‘is governed, as is the case of any trial court, by Immediate Suspension Order, there may registration under section 823 of this title the applicable and controlling precedents. These be collateral consequences which inconsistent with the public interest as determined precedents include . . . the agency’s policies as preclude a finding of mootness. Here for under such section,’’ every Administrator and laid down in its published decisions. . . . Once the Deputy Administrator who has exercised the agency has ruled on a given matter . . . it is not example, the Immediate Suspension authority granted by section 824 has rejected the open to reargument by the administrative law ALJ’s view. Moreover, in Clair L. Pettinger, M.D., 78 judge’ ’’)). Accordingly, I decline to publish the 1 All citations to the Recommended Decision are FR 61592 (2013), the Administrator thoroughly ALJ’s discussion regarding the applicability of to the slip opinion as issued by the ALJ. addressed and rejected the ALJ’s reasoning. Indeed, factor two in revocation proceedings.

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that ‘‘expert testimony [was] critical to While some of Respondent’s protect against addiction, diversion, and establishing [his] defense,’’ id. at 2, and arguments are well taken, I hold that misuse.’’ Id. at 4. that Dr. Stieg (his expert), ‘‘was Respondent has failed to demonstrate Respondent further proffered that Dr. prepared to testify that contrary to the prejudicial error. See 5 U.S.C. 706. As Stieg would testify ‘‘that the physician/ Government’s position, he did not fail to several federal courts have explained, patient relationship for pain medicine meet the standard of care in pain an ALJ’s discretion ‘‘includes the power must evolve over time,’’ id., and that the medicine.’’ Id. at 3. to make reasonable, nonarbitrary ‘‘approximately three to four month[ ]’’ Respondent further contends that he decisions regarding the admission or periods in which Respondent treated ‘‘was placed in a perilous position by exclusion of evidence.’’ Gunderson v. the undercover officers ‘‘is an extremely the’’ ALJ, apparently because after Department of Labor, 601 F.3d 1013, short period which provided additional Respondent identified Dr. Stieg and 1021 (10th Cir. 2010). However, even difficulties [in] discover[ing] the lies disclosed ‘‘his expected testimony,’’ he where it is shown that an ALJ erred in told to him by the undercover agents.’’ ‘‘also discovered that Dr. Stieg’’ had a excluding evidence, that error must Id. at 4–5. serious medical condition and was to ‘‘ ‘prejudicially affect a substantial right On the issue of the adequacy of the undergo treatment on the dates set for of a party.’ ’’ Id. (quoting Sanjuan v. IBP, physical exams, Respondent proffered the hearing (December 16–17, 2013) and Inc., 160 F.3d 1291, 1296 (10th Cir. that ‘‘Dr. Stieg would testify that there ‘‘would be unable to testify.’’ Id. 1998)). See also Air Canada v. is no single standard to determine Respondent then notes that ‘‘[u]pon Department of Trans., 148 F.3d 1142, exactly what an adequate physical discovering this information,’’ he 1156 (D.C. Cir. 1998) (‘‘As incorporated examination requires in every immediately moved for a continuance of into the APA, the harmless error rule circumstance’’ and that ‘‘there is a the proceeding, but that the ALJ denied requires the party asserting error to consensus standard that a physical his motion. demonstrate prejudice from the error.’’) examination should focus on the cause of the pain.’’ Id. at 5. Moreover, Dr. Stieg Respondent further argues that the (citing 5 U.S.C. 706). would have testified ‘‘that a full ALJ’s basis for denying his motion was Moreover, ‘‘[a]n error is prejudicial physical examination is usually not inconsistent with agency precedent. In only ‘if it can be reasonably concluded required for every pain medicine that with . . . such evidence, there his Recommended Decision, the ALJ encounter.’’ Id. explained that he found Dr. Stieg’s would have been a contrary result.’ ’’ Respondent also proffered that ‘‘Dr. testimony ‘‘would likely have little Gunderson, 601 F.3d at 1021 (quoting Stieg would have testified that the probative value, as the witness did not Sanjuan, 160 F.3d at 1296). Applying diagnosis made by Dr. Zaidi for each appear to be familiar with Ohio medical this standard, Respondent cannot undercover agent were [sic] within the practice standards.’’ R.D. at 4. prevail. accepted and prevailing standards of Respondent argues that the ALJ’s reason According to Respondent’s proffer, care,’’ that the initial ‘‘diagnosis often is ‘‘arbitrary, capricious, an abuse of ‘‘Dr. Stieg would have testified that becomes clearer as the physician/patient discretion, and not in accord with DEA there is no ‘gold standard’ or one relationship yields more information precedent,’’ noting that in Mireille defined standard which defines with over time,’’ and while an ‘‘MRI and Lalanne, 78 FR 47750, 47759 (2013), the certainty the accepted and prevailing further testing may have revealed [a] Agency held that evidence as to standards of care for pain medicine more specific pathological diagnosis ‘‘generally recognized and accepted medical services’’ and that ‘‘whether a . . . the diagnosis of lumbago and medical practices’’ may be admitted to physician has met the accepted and lumbar radiculosis can be justified, show ‘‘the usual course of professional prevailing standards of care for pain pending further analysis.’’ Id. at 6. practice’’ under the CSA and the medicine service is a case by case Finally, Respondent proffered that Dr. Agency’s regulations. R.D. at 4 (other analysis, taking into account the Stieg would have testified that given citation omitted). He then notes that individual circumstances of each ‘‘the short treatment period, the several of the factors which the Agency patient and the relevant medical standard of care’’ did not require that is required to consider under the public decisions in connection with the Respondent demand that the interest standard are ‘‘not set by state treatment of that patient.’’ Resp. Offer of undercover officers undergo ‘‘additional law.’’ Resp. Exceptions, at 5. Moreover, Proof, at 3. expensive treatment at that time, such Respondent suggests that the ALJ made Moreover, Dr. Stieg ‘‘would have as physical therapy,’’ and that inconsistent findings when he held that testified that a physician in Respondent acted within the standard of Respondent had not demonstrated that [Respondent’s] position has an ethical care by considering the undercover the exclusion of Dr. Stieg’s testimony duty to believe what his patient tells officers’ representations that they were would cause him ‘‘substantial him regarding his or her medical unable ‘‘to pay for the’’ MRIs and prejudice,’’ while at the same time he condition, and has a duty to attempt to alternative treatments. Id. Thus, Dr. held that the Government would be provide appropriate treatment which he Stieg would have testified that prejudiced by the testimony. Id. at 4. believes helps his patient with the Respondent’s ‘‘treatment of the Finally, Respondent notes that while condition the patient represents to undercover agents was for legitimate the ALJ had initially considered him,’’ and that it is ‘‘reasonable and medical purposes.’’ Id. at 3. allowing Dr. Stieg to testify through ethically imperative to believe’’ the I agree with Respondent that it was video teleconference (and be taken out patient until a ‘‘physician is presented not reasonable to require him to identify of order), he reversed his position after with objective evidence that the patient his expert witness, have the expert Respondent invoked his Fifth is lying . . . or is otherwise non- review the Government’s evidence Amendment privilege and refused to compliant.’’ Id. at 3–4. Dr. Stieg would against him, and prepare an adequate testify when called as a witness by the have further testified that various summary of the expert’s testimony Government. Id. at 5 (citing Tr. 248). actions Respondent took in prescribing within the time period provided for in According to Respondent, the ALJ’s to the undercover officers were the ALJ’s pre-hearing ruling. Indeed, it ruling was an ‘‘attempt to punish ‘‘appropriate and . . . within the is not clear on this record how Respondent for exercising his accepted and prevailing standard of Respondent could have provided an constitutional right.’’ Id. care,’’ as well as being ‘‘appropriate to adequate summary of his expert’s

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testimony in his prehearing statement substances, Respondent acted outside 77 FR 57133, 57150 (2012) (drawing when, under the ALJ’s Order for the usual course of professional practice adverse inference that physician Prehearing Statements, he was required and lacked a legitimate medical knowingly diverted controlled to file the statement one week before the purpose. See 21 CFR 1306.04(a) (‘‘A substances when he failed to testify parties were even required to exchange prescription for a controlled substance ‘‘notwithstanding the substantial their proposed exhibits. See ALJ Exs. 3 . . . must be issued for a legitimate probative evidence of irregularities in & 4. I also agree with Respondent that medical purpose by an individual his prescribing practices’’).4 it was not reasonable for the ALJ to deny practitioner acting in the usual course of The ALJ’s Ruling Barring Testimony his request for a continuance after he professional practice.’’). From Respondent’s Employees determined that his expert was unable This conclusion is buttressed by to attend the hearing because he needed Respondent’s invocation of his Fifth Respondent further argues that the to undergo treatment for a serious Amendment privilege when called to ALJ acted arbitrarily and capriciously medical condition. Finally, I agree with testify by the Government. As the when he barred the testimony of three Respondent that under agency Supreme Court has explained, ‘‘the Fifth employees (C.B., J.B., and R.Z.). precedent, evidence as to ‘‘generally Amendment does not forbid adverse Exceptions, at 5–6. Respondent recognized and accepted medical inference against parties to civil actions maintains that the employees ‘‘were practices’’ remains admissible to show when they refuse to testify in response directly involved in the patient care of whether a physician acted within ‘‘the to probative evidence offered against the undercover [officers] and were also usual course of professional practice’’ them.’’ Baxter v. Palmigiano, 425 U.S. interviewed by the . . . Agents when under federal law. See Mireille Lalanne, 308, 318 (1976) (emphasis added); see they raided [his] office.’’ Id. at 5. 78 FR 47750, 47759 (2013). While Dr. also MacKay v. DEA, 664 F.3d 808, 820 In his proffer, Respondent stated that Stieg’s apparent lack of familiarity with (10th Cir. 2011) (quoting Keating v. C.B. is a certified medical assistant who the State of Ohio’s medical practice Office of Thrift Supervision, 45 F.3d took each undercover officer’s history standards might properly lead to giving 322, 326 (9th Cir. 1995) (‘‘Not only is it and that she ‘‘did extensive histories on his testimony less weight, especially permissible to conduct a civil when it was weighed against that of an [administrative] proceeding at the same 4 I further find that Respondent has not expert who is knowledgeable in the time as a related criminal proceeding, demonstrated that the ALJ committed prejudicial error when he barred Dr. Stieg’s testimony. As Ohio standards and who has served as even if that necessitates invocation of noted above, Respondent also contended that the an expert reviewer for the State’s the Fifth Amendment privilege, but it is ALJ’s ruling barring Dr. Stieg’s testimony was an medical board, it was not a per se bar even permissible for the trier of fact to attempt to punish him for exercising his Fifth to its admission. draw adverse inferences from the Amendment privilege. For purposes of resolving his contention, I assume, without deciding, that the ALJ This aside, much of the proffered invocation of the Fifth Amendment in a violated Respondent’s rights under the Fifth testimony is consistent with that given civil [administrative] proceeding.’’)); Amendment when he relied on Respondent’s by the Government’s expert. But most Hoxie v. DEA, 419 F.3d 477, 483 (6th failure to testify as a ground for his ruling. See Tr. significantly, this is not a case in which Cir. 2005). 248. the evidence is limited to the testimony In its prehearing statement, the However, even in criminal cases, the Supreme Court has held that a violation of a defendant’s Fifth of dueling experts. Rather, the Government provided notice that it Amendment privilege is subject to harmless-error Government presented substantial intended to call Respondent to testify analysis. Neder v. United States, 527 U.S. 1, 18 evidence beyond the testimony of its ‘‘that his treatment of the undercover (1999) (‘‘The erroneous admission of evidence in expert to support the conclusion that officers fell below accepted medical violation of the Fifth Amendment’s guarantee standards and that the controlled drugs against self-incrimination . . . and the erroneous Respondent acted outside the usual exclusion of evidence in violation of the right to course of professional practice and [were not] prescribed in the usual confront witnesses guaranteed by the Sixth lacked a legitimate medical purpose in course of professional practice or for a Amendment . . . are both subject to harmless-error issuing the prescriptions to the legitimate medical purposes,’’ as well as analysis under our cases.’’). In this proceeding, the undercover officers. Thus, even if Dr. ‘‘that his documentation of his standard for assessing whether an error is prejudicial is whether ‘‘‘it can be reasonably Stieg had testified that Respondent examinations of [each undercover concluded that with . . . such evidence, there acted within the accepted standard of officer] was inaccurate and not based on would have been a contrary result.’ ’’ Gunderson, care in making the diagnoses and objective data that he gathered during 601 F.3d at 1021 (quoting Sanjuan, 160 F.3d at prescribing controlled substances to the the exams.’’ ALJ Ex. 8. Respondent’s 1296). As explained above, Respondent has not made such a showing. See United States v. Local undercover patients, as ultimate invocation of his Fifth Amendment 560, Int’l Bhd. of Teamsters, 780 F.2d 267, 292 n.32 factfinder, I would not find this privilege, considered in light of the (3d Cir. 1985) (holding that ‘‘while the district court sufficient to reject the ALJ’s findings. probative evidence weighed by the ALJ, erred in drawing an [adverse inference from a Gunderson, 601 F.3d at 1021 (quoting thus supports the inference that he litigant’s invocation of the Fifth Amendment], that error was harmless in light of the independent Sanjuan, 160 F.3d at 1296). acted outside of the usual course of evidence supporting the district court’s Here, with respect to each of the professional practice and lacked a conclusion’’) (citation omitted). undercover officers, the record is replete legitimate medical purpose when he In justifying his refusal to grant a continuance to with evidence that Respondent falsified prescribed controlled substances to the Respondent, the ALJ also explained that he was each officer’s medical record at every 3 ‘‘guided by the expectation that where doing so is undercover officers. See T.J. McNichol, not inconsistent with a litigant’s rights under the visit to document both: (1) The Due Process Clause or the Administrative Procedure performance of physical exam tests 3 The ALJ also found credible the testimony of a Act, I should endeavor to submit the certified which he never conducted, and (2) pain DEA Diversion Investigator that during an record of these proceedings to the Administrator levels which were higher than the interview, Respondent was asked why the pain . . . not later than the 150th day after the issuance levels documented in the medical record of one the of an immediate suspension (excepting any days officers actually reported. Nothing in undercover officers were different than what the caused by Respondent’s own actions).’’ R.D. at 4– the proffered testimony of Dr. Stieg undercover officer had said during the visits. R.D. 5. However, even where an immediate suspension refutes the fair inference which arises 27 (citing Tr. 620). While Respondent was allowed order has been issued, the Administrator has clearly from the falsifications—that Respondent to look at the undercover chart, Tr. 621, he ‘‘did not instructed the Agency’s ALJs that they may grant a have a response’’ to the question. Id. at 620. This continuance upon a registrant’s request. Here, but falsified the records in order to justify testimony, which was unrefuted, also supports an for the fact that Respondent cannot show the prescribing of controlled substances, inference that Respondent falsified the undercover prejudicial error, I would have remanded this and that in prescribing the controlled officers’ medical records. matter.

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them’’ as well as other patients. Resp. was filed even after the testimonial Exception Two—The ALJ Erred in Offer of Proof, at 9–10. C.B. would also phase of the hearing was concluded) Applying Ohio Revised Code § 4731.052 have testified to the procedures used by does not identify any material fact and Ohio Admin. Code § 4731–21–02 as Respondent in obtaining urine drug which any of the employees would have the Standard for Determining Whether screens and reports from the Ohio refuted. Accordingly, I conclude that Respondent Violated 21 CFR 1306.04(a) prescription monitoring program Respondent has also failed to establish Respondent argues that ‘‘the (OARRS). Id. at 10. Moreover, C.B. prejudice.5 Government’s expert failed to establish would have testified regarding The ALJ’s Rulings Barring Evidence with any degree of medical certainty the Respondent’s procedures for using Regarding Respondent’s Treatment of standard of care which Respondent . . . ‘‘random urine drug screening and Other Patients failed to meet’’ and that the ALJ erred access to the OARRS database with in applying Ohio Revised Code regard to the patients whose charts were Respondent also sought to elicit § 4731.052 and Ohio Admin. Code offered as Respondent’s exhibits, as well testimony from ten patients regarding § 4731–21–02 ‘‘as the sole standard’’ as her explanation to patients regarding the care they received from Respondent when he held that Respondent violated the [pain] contract.’’ Id. C.B. would have and how his treatment of them 21 CFR 1306.04(a) when he prescribed also testified as to various patients ‘‘dramatically improved their lives, Respondent discharged because they functionality, and ability to tolerate to the undercover officers. Resp. ‘‘engaged in the use of illegal drugs their ongoing pain.’’ Resp. Proffer, at 13; Exceptions, at 6. Respondent argues that and/or the misuse of controlled see also Resp. Exceptions, at 1 & 6.6 the ALJ’s reliance on these provisions substances prescribed by’’ Respondent, Because DEA is not a state medical was misplaced because they apply only and finally, C.B. would have testified to board, whether Respondent improved to the treatment of chronic or intractable Respondent’s treatment of various the lives and functionality of these pain and not acute pain, which was the patients and ‘‘how [he] has helped these patients is not relevant under any of the condition presented by the undercover patients regain functionality and control public interest factors. While evidence officers. Id. at 7. over their debilitating pain.’’ Id. of Respondent’s lawful prescribing and I reject Respondent’s exception. According to his proffer, R.O. would compliance with federal and state Contrary to his contention, the ALJ have largely duplicated C.B.’s testimony controlled substances rules with respect specifically acknowledged (as did the regarding Respondent’s treatment of the to these patients would be relevant Government’s expert) that the Ohio patients, whom he helped to regain under the public interest standard, no provisions did ‘‘not apply during that functionality and control of their pain, such proffer was made. Accordingly, the phase of treatment where the diagnosis as well as those patients who were ALJ did not err in barring this is of acute pain, but appl[ied] only after discharged for using either illegal drugs testimony.7 the treatment extend[ed] past twelve or for misusing drugs he had prescribed. weeks.’’ R.D. at 69. However, as the ALJ Id. at 11. R.O. would also have ‘‘testified 5 While the proffered testimony was arguably explained, Ohio law defines ‘‘chronic regarding the contract signed by the relevant to an assessment of Respondent’s pain’’ as ‘‘pain that has persisted after undercover agents and her explanation experience in dispensing controlled substances reasonable medical efforts have been (factor two) and his compliance with applicable to those agents of the contents of the laws related to controlled substances (factor four), made to relieve the pain or cure its contract.’’ Id. the fact that a physician engaged in the legitimate cause and that has continued, either Finally, J.B. ‘‘would have testified practice of medicine with respect to other patients continuously or episodically, for longer regarding her observations concerning does not refute a prima facie showing that a than three continuous months.’’ Id. at physician knowingly diverted controlled [Respondent’s] interaction with and substances. See MacKay v. DEA, 664 F.3d at 808, 70. Here, each of three undercover treatment of patients including the 819 (10th Cir. 2011) (‘‘Although Dr. MacKay may officers received controlled substances undercover agents and those patients’’ have engaged in the legitimate practice of pain from Respondent for more than three identified in Respondent’s Exhibits A medicine for many of his patients, the conduct months after they initially saw found by the Deputy Administrator with respect to through R, as well as regarding the [the two patients] is sufficient to support her Respondent and received a controlled- 8 patients that Respondent discharged. Id. determination that his continued registration is substance prescription. Yet, as the at 12. J.B. would also have testified that inconsistent with the public interest.’’); see also she is the record custodian for Jayam Krishna-Iyer, 74 FR 459, 463 (2009) (holding is a diplomate of the American Board of Physical Respondent’s practice and that these that, even assuming that physician has treated Medicine and Rehabilitation, with a subspecialty of thousands of other patients in compliance with the pain medicine; a diplomate of the American Board records were authentic. Id. CSA, these prescribings did not ‘‘render her of Pain Medicine; a Diplomate of the American The ALJ barred Respondent from prescribings to the undercover officers any less Board of Electrodiagnostic Medicine; and a Fellow presenting the testimony of these three unlawful . . . [b]ecause under law, registration is of Interventional Pain Practice. To be sure, this witnesses because the substance of their limited to those who have authority to dispense evidence may have had some probative value in testimony was not timely disclosed and controlled substances in the course of professional assessing his experience as a dispenser of practice, and patients with legitimate medical controlled substances. However, in his Exceptions, did not sufficiently establish relevance. conditions routinely seek treatment from licensed Respondent makes no argument that the ALJ Here, in contrast to the ALJ’s rulings on medical professionals[;] [ thus] every registrant can improperly excluded these exhibits. Respondent’s proposed expert, I undoubtedly point to an extensive body of 8 I agree with Respondent that the undercover conclude that the ALJ did not err in legitimate prescribing over the course of her agents did not present as suffering from ‘‘intractable professional career’’). pain,’’ as that term is defined by Ohio’s regulation. barring the testimony on the ground that 6 Respondent also proffered that Dr. Stieg would Resp. Exceptions, at 7. The regulation defines it was not timely disclosed. Respondent have testified regarding the patients whose records ‘‘intractable pain’’ as ‘‘a state of pain that is had more than one month from the date were offered in Respondent’s Exhibits A through R, determined, after reasonable medical efforts have of the ALJ’s prehearing order to as well as those patients Respondent discharged for been made to relieve the pain or cure its cause, to noncompliance, and that Respondent met the have a cause for which no treatment or cure is determine whether his employees could standard of care in treating both categories of possible or for which none has been found.’’ Ohio offer relevant evidence in the matter and patients. Resp. Offer of Proof, at 7–9. While the ALJ Admin. Code § 4731–21–01(G). Here, Respondent a week from the time the Government also barred this testimony, Respondent does not did not make a diagnosis of intractable pain with provided a detailed summary of the raise the issue in his Exceptions. Therefore, I deem respect to any of the undercover officers. Nor is it it waived. clear how any such diagnosis could have been testimony of each of its witnesses to 7 Respondent’s proffered exhibits also includes made given that Respondent did not perform disclose their anticipated testimony. his curriculum vitae showing his professional anything more than a cursory physical exam at the Moreover, Respondent’s proffer (which experience, as well as certificates showing that he Continued

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Government’s expert testified, recording and transcript of the visit and assessment and documentation of the Respondent did not comply with the found that Respondent did not perform patient’s functional status, including the heightened standards imposed on a physical examination (while ability to engage in work or other prescribing controlled substances to documenting that he did) and that the purposeful activities, the interference treat chronic pain. findings were falsified. Tr. 80–81. He with activities of daily living, quality of Moreover, notwithstanding that further noted that while the progress family life and social activities.’’ neither of the Ohio provisions applied note stated that the treatment plan Exceptions, at 7 (quoting R.D. 79, in the initial three-month period of the included a home exercise program (in Conclusion of Law #8). Respondent undercover officers’ treatment, the addition to controlled substances), there asserts that Ohio law does not require ‘‘a record contains substantial evidence to was no evidence of ‘‘any educational prescribing physician to perform these support the conclusion that Respondent endeavor that would allow someone to measures for acute pain patients.’’ Id. acted outside of the usual course of conduct a home exercise program.’’ Id. Apparently, Respondent’s view is that professional practice and lacked a at 81; see also id. at 83–85. As for notwithstanding that he treated each of legitimate medical purpose when he Respondent’s prescription for Percocet, the UCs for pain with controlled prescribed to each of the undercover the expert opined that it was ‘‘not substances for ‘‘longer than three officers during this period. For example, justified’’ and was ‘‘prescribed outside continuous months,’’ Ohio Rev. Code with respect to Patient Tyler Williams, the usual course of professional § 4731.052(A)(1), he cannot be held to Respondent diagnosed him as having practice.’’ Id. at 86. have violated the Ohio statute because ‘‘thoracic and lumbar radiculitis, With respect to the third visit, the he never actually diagnosed the patients lumbago.’’ GX 12, at 8. However, the Government’s expert similarly observed as having chronic pain. See Resp. Post- Government’s expert testified that he that there was no evidence that Hrng. Br., at 7–9. (‘‘The express had reviewed the video recording of the Respondent had examined the UC’s language of . . . § 4731.052 requires a UC’s first visit and found that while lumbar spine or performed sensory or physician diagnosis of ‘chronic pain.’ Respondent documented that he had motor testing of his lower extremities, The statute does not mandate a performed numerous tests during the id. at 88, although Respondent diagnosis of chronic pain, but rather is physical examination, many of the tests documented having done so. GX 12, at instructive as to what is required after were actually not performed. Tr. 71–76. 11. The expert also noted that the such a diagnosis. In the present case, The expert thus explained that his progress note documented a pain level none of the undercover . . . Agents was ‘‘impression of the physical of ‘‘5,’’ which was higher than what the diagnosed by Dr. Zaidi as having examination is that it is falsified, it is UC reported. Tr. 88. Indeed, the UC chronic pain.’’). embellished, and it is inaccurate, to the reported that his present pain level was Notably, the Government’s expert point that much of it, though a ‘‘2,’’ and that the worst it had been in (who has been an expert reviewer for documented here, was not performed.’’ the past week was a ‘‘3.’’ GX 12, at 18. the state medical board) explained that Id. at 76. Once again, the expert testified that at twelve weeks, Ohio law considers The Government’s expert then Respondent’s diagnosis of lumbar this to be ‘‘protracted prescribing,’’ explained that Respondent’s diagnosis radiculitis could not be justified based which requires ‘‘a much higher level of was not justified by the patient’s history intensity of service.’’ Tr. 100; see also on the ‘‘the entirety of the history and 11 and the physical examination and that the physical examination.’’ Tr. 89. id. at 285–87. But even if it is the case the diagnosis of radiculitis was With respect to the UC’s fourth and that a physician can avoid having to comply with the requirements section ‘‘blatantly inaccurate.’’ Id. at 78. The fifth visits, the expert again found that 4731.052 imposes after three months by expert further opined that Respondent’s there was no justification for the lumbar simply failing to make a diagnosis of issuance of a prescription for Percocet radiculitis diagnosis and that chronic pain, I would still conclude that was ‘‘not justified by the presentation of Respondent did not physically examine Respondent acted outside of the usual the patient.’’ Id. at 79. the UC’s lumbar region and lower course of professional practice and The progress note for the UC’s second extremities while documenting that he lacked a legitimate medical purpose in visit states that he had ‘‘moderate did. Tr. 97–99. Moreover, at the fourth prescribing to the undercover officers. tenderness and spasm in paralumbar visit, Respondent again documented muscles with guarding in forward As the Government’s expert that the UC had a pain level of 5, explained, the prescriptions ‘‘were not flexion’’ and that the ‘‘lower extremity although the transcript contains no examination is normal to sensory and for a legitimate medical purpose,’’ Tr. indication that the UC was asked about 103, because the diagnosis of lumbar motor testing.’’ GX 12, at 12. Here again, 9 his pain level by Respondent. GX 9, at radiculitis ‘‘is not justified or the Government’s expert reviewed the 10 20–22. substantiated by either the history or the Respondent further contends that the physical examination.’’ Id. at 107; see initial visit and generally no exam at subsequent ALJ erred in concluding that he ‘‘failed visits, and never recommended that his patients also id. at 268 (expert finding ‘‘no even modify their daily activities, let alone undergo to fully document his periodic physical therapy. Tr. 118, 125. I therefore reject the 11 As the expert testified: 9 ALJ’s conclusion of law Number 11. R.D. at 84–85 Nor does the medical record contain an entry for That 90 days is a pause, and it is a method of (concluding ‘‘that Respondent failed to comply with this visit in the Nursing Progress Record (as it does communicating very forcefully to the physician, the requirements of Ohio law for the treatment of for the other visits). GX 12, at 18. Respondent’s that if this is going on for that time, there better be intractable pain’’). signed progress note for the UC’s fifth and final visit quite a bit of substantiation behind it, and intensity However, based on the length of the prescribings, does not contain a numerical entry for his pain of service needs to justify the continued uses of that I agree with the ALJ’s conclusion that Respondent level; however, the Nursing Progress Record medication. . . . It’s not reasonable, especially failed to comply with Ohio’s chronic pain statute. documents both the present level of his pain, and when a patient is being seen acutely, that even we See Ohio Rev. Code § 4731.052. This provision its worst level during the week as a ‘‘2.’’ Id. see from the emergency department with several defines ‘‘chronic pain’’ as ‘‘pain that has persisted 10 The record also contains substantial evidence weeks of pain, it’s really not reasonable to know after reasonable medical efforts have been made to to support findings that Respondent failed to how long that prediction is. But what the law is relieve the pain or cure its cause and that has perform physical examinations of the two other saying is that if somebody needs controlled continued, either continuously or episodically, for undercover officers while documenting that he had substances that long, this is the level of intensity longer than three continuous months.’’ Id. at done so, as well as that he documented that the of service that somewhere along the line, needs to § (A)(1). Thus, this provision does not appear to undercover officers reported higher pain levels than have been accomplished. require that the pain be incapable of being cured. they actually had. See R.D. at 79 (FoF #7). Id. at 286–87.

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supporting evidence’’ for a diagnosis of Moreover, in his testimony, the I therefore reject Respondent’s lumbar radiculitis). The expert also Government’s expert acknowledged the exception to the ALJ’s legal conclusion observed that if he had ‘‘reviewed only ‘‘concept described as [the] minimal that the prescriptions were not issued the medical record . . . [he] would have standard of care,’’ which he explained for a legitimate medical purpose in the arrived at a different opinion’’ than as ‘‘those actions and decisions that usual course of professional practice. what he did having been able ‘‘to see a would be made by a reasonable See R.D. at 82–83 (Conclusion of Law transcript and watch an audio/visual physician under similar circumstances.’’ #8); Resp. Exceptions, at 6–9. Tr. 204. The expert then testified that in recording of what actually occurred Exception Three—The ALJ Erred In the ‘‘environment under which we during that encounter,’’ and that the Evaluating the Public Interest Factors medical record ‘‘makes it appear that discuss this case, that standard of care the severity of the patient[’s] condition and the minimal standard of care can be Respondent further argues that the is much more severe than what I’m considered one [and] the same,’’ and ALJ ‘‘incorrectly determined that seeing when I actually am watching and that if a physician meets the minimal Factors 2, 4, and 5 support revocation’’ listening to the recording of the events.’’ standard of care, he meets the standard of his registration. Resp. Exceptions, at Id. at 108. Given what the video of care. Id. at 204–05. Thus, I reject 10. While I find that some of recordings of the UC’s visits with Respondent’s contention that the expert Respondent’s contentions are well Respondent show, I agree.12 applied his own subjective standard taken, I conclude that the record as a Also, the expert explained that the rather than the standard of a reasonable whole supports the ALJ’s ultimate treatment plan ‘‘focuse[d] only on physician in concluding that conclusions that Respondent has controlled substances and not on other Respondent acted outside the usual committed such acts as to render his alternative approaches to care,’’ id. at course of professional practice in registration inconsistent with the public 103, such as ‘‘physical therapy’’ and prescribing to the undercover officers. interest (had he submitted an ‘‘non-controlled’’ medications such as So too, while the expert was not asked application), and that Respondent failed non-steroidal anti-inflammatories, what tests are necessary to conduct a to rebut this conclusion. R.D. at 87. As this Agency has long held, I am neuro-modulators, and tricyclic physical examination which meets the not required to make findings under medications. Id. at 107. And while the standard of care with respect to the each of the factors and findings under progress notes after the undercover specific diagnoses made by Respondent, a single factor are sufficient to support officer’s first visit list a ‘‘home exercise on cross-examination, the expert the revocation or suspension of a program’’ as part of the treatment plan, explained that ‘‘[r]adiculopathy and registration. See Hoxie v. DEA, 419 F.3d, as the expert explained, there was no radiculitis are very similar diagnoses 477 482 (6th Cir. 2005); Morall v. DEA, evidence that Respondent provided and [have] very similar causes, but the 412 F.3d 165, 173–74 (D.C. Cir. 2005). such a program to the undercover diagnosis of radiculopathy is a nerve injury that is a permanent loss of nerve In short, this is not a contest in which officer. Id. at 108; see also Tr. 82. score is kept; the Agency is not required Respondent also asserts that the function and that the distribution of the change in permanent function is that to mechanically count up the factors Government’s expert applied ‘‘his own and determine how many favor the subjective interpretation of how he which corresponds to those muscles or portions of . . . the body that that Government and how many favor the believed a physical examination should registrant. Rather, it is an inquiry which be conducted and diagnosis particular nerve serves.’’ Id. at 203–04. When then asked whether he saw ‘‘any focuses on protecting the public determined’’ and that ‘‘[t]here is no evidence of that type of diagnosis in any interest. evidence in the record to establish what of the undercover agents,’’ the expert With respect to factor two— a physical exam or diagnosis requires.’’ answered that he ‘‘did not see any Respondent’s experience in dispensing Resp. Post-Hrng. Br., at 11. It is noted, evidence . . . of them displaying the controlled substances—Respondent however, that the Government’s expert physical findings or the complaints of a argues that the Government seized more is board certified in anesthesiology, permanent nerve injury.’’ Id. at 204. than 400 patient files from his office internal medicine, and pain medicine; Thus, I am satisfied that substantial ‘‘and failed to present any evidence . . . that he is the Director of Pain Medicine evidence supports a finding that that the treatment of those patients Services and the Pain Medicine Respondent’s diagnosis of lumbar failed to meet the standard of care.’’ Fellowship at the Ohio State University radiculitis with respect to two of the Resp. Exceptions, at 10. He also argues Medical Center; that he has taught undercover officers was not justified by that ‘‘there were over 400 additional courses in Acute Pain, Chronic Pain, their histories and physicals.13 patients’ charts which were not seized and Chronic Back Pain; and that he has and [that] no evidence was presented to served as an expert reviewer in pain 13 While I have discussed the expert’s testimony question their treatment.’’ Id. medicine for the State Medical Board of in addressing Respondent’s Exceptions, as stated Respondent thus contends that in this Ohio. GX 2. above, the recordings which show that Respondent matter, ‘‘there was no attempt at ‘fair falsified the medical records with respect to both the scope of the examinations he performed and the adjudication.’ ’’ Id. 12 For example, at the UC’s first visit, UCs’ reported pain levels, the briefness of the The Agency has repeatedly rejected Respondent’s physical examination was limited to encounters, and his refusal to testify, provide Respondent’s contention. See, e.g., asking the UC to stand up, turn around and show sufficient evidence, apart from the expert’s Jayam Krishna-Iyer, 74 FR 459, 463 him where the pain was; having the UC bend testimony, to support a finding that he acted forward and come back up; and then having the UC outside of the usual course of professional practice walk on his heels, turn, and walk on his toes. GX and lacked a legitimate medical purpose when he Armstrong, 550 F.3d at 389 (‘‘Jurors have had a 3a. The entire encounter between Respondent and prescribed to the UCs. See United States v. Pellman, wide variety of their own experiences in doctors’ the UC lasted four minutes and resulted in 668 F.3d 918, 924 (7th Cir. 2012) (quoting United care over their lives, thus . . . expert testimony is Respondent writing a prescription for Percocet. Id. States v. Armstrong, 550 F.3d 382, 389 (5th Cir. not necessarily required for jurors to rationally During the UC’s subsequent four visits, 2008) (‘‘While expert testimony may be both conclude that seeing patients for as little as two or Respondent never performed a physical exam, permissible and useful, a jury can reasonably find three minutes before prescribing powerful narcotics while documenting having done so. See GX3b, c, that a doctor prescribed controlled substances not is not in the usual course of professional d, and e. Moreover, the UC’s encounters with in the usual course of professional practice or for practice.’’)). See also T.J. McNichol, 77 FR 57133, Respondent lasted between three minutes and thirty other than a legitimate medical purpose from 57147 (2012) (discussing both judicial and seconds (3′30″) at the second visit and one minute adequate lay witness evidence surrounding the facts administrative cases); Jack A. Danton, 76 FR 60900, and twenty seconds (1′20″) at the fifth visit. See id. and circumstances of the prescriptions.’’)); 60901 (2011).

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(2009). In Krishna-Iyer, a case in which rev. denied, MacKay v. DEA, 664 F.3d of M.R. and K.R. Notably, Dr. MacKay’s the Government relied solely on 808 (10th Cir. 2011). Based on the medical expert, Dr. Fine, failed to specifically evidence of the physician’s unlawful substantial evidence that the physician discuss and justify Dr. MacKay’s treatment of prescribing to several confidential had knowingly diverted controlled M.R. and K.D. As a result, none of Dr. substances to two patients who acted in MacKay’s evidence contradicts the testimony sources, the Agency assumed that the and evidence presented by the DEA relating physician’s prescribing to 12 patients an undercover capacity, the Agency to the knowing diversion of drugs to these whose files were seized but were not held that the Government had satisfied two patients. relied on by the Government in its prima facie burden of showing that presenting its case, as well as thousands Respondent had committed acts which 664 F.3d at 819. The Court of Appeals thus concluded of other patients (other than the rendered his registration inconsistent that ‘‘[a]lthough Dr. MacKay may have undercover operatives), constituted with the public interest. 75 FR 49977. engaged in the legitimate practice of evidence of dispensing controlled The Agency also addressed and pain medicine for many of his patients, substances in circumstances which did rejected the physician’s contention that the conduct found by the Deputy not constitute diversion. Id. ‘‘[a] better assessment of [his] medical However, as the Agency explained, practice and habits can be ascertained Administrator with respect to K.D. and the physician’s ‘‘prescribings to from [his] numerous positive M.R. is sufficient to support her thousands of other patients do not . . . experiences in prescribing controlled determination that his continued render her prescribings to the substances, some of which were registration is inconsistent with the undercover officers any less unlawful, recounted by the patients themselves public interest.’’ Id. In this matter, I have assumed that or any less acts which are ‘inconsistent . . . at the hearing.’’ Id. (quoting Resp. Respondent lawfully complied with the with the public interest.’ ’’ Id. The Br. at 3). As the Agency explained: CSA whenever he prescribed controlled Agency further explained that: ‘‘even assuming, without deciding, that Respondent’s prescribing practices to all substances to all of his patients under the CSA, a practitioner is not entitled (including the 800 patients with respect to a registration unless she ‘‘is authorized to of his other patients (including those whose medical records were reviewed to whom no evidence was offered) other dispense . . . controlled substances under 15 the laws of the State in which [she] by the Government’s expert but who did than the undercover officers. But even practices.’’ 21 U.S.C. 823(f). Because under not perform undercover visits 14) fully assuming that Respondent lawfully law, registration is limited to those who have complied with the CSA and Utah law, prescribed controlled substances to all authority to dispense controlled substances these prescribings do not refute the of these other patients, the evidence still in the course of professional practice, and evidence showing that he intentionally supports a finding that he knowingly patients with legitimate medical conditions diverted to [the two undercovers] in and intentionally diverted controlled routinely seek treatment from licensed violation of both the CSA and Utah substances to the undercover officers.16 medical professionals, every registrant can This finding is relevant in assessing undoubtedly point to an extensive body of law.’’ 75 FR at 49977. Noting that the legitimate prescribing over the course of her physician had failed to testify and offer both his experience in dispensing professional career. Thus, in past cases, this evidence that he recognized the extent controlled substances (factor two) and Agency has given no more than nominal of his misconduct and was prepared to his compliance with applicable laws weight to a practitioner’s evidence that he remedy his unlawful practices, the related to controlled substances (factor has dispensed controlled substances to Agency revoked his registration. thousands of patients in circumstances The Tenth Circuit denied the 15 This is not a case in which there is any which did not involve diversion. physician’s petition for review. MacKay ambiguity as to Respondent’s intent when he Id. (citations omitted); see also Medicine prescribed controlled substances to the undercover v. DEA, 664 F.3d 808 (10th Cir. 2011). officers. Thus, evidence of his lawful prescribings Shoppe-Jonesborough, 73 FR 364, 386 & Of relevance here, the Tenth Circuit to others would not lead any reasonable factfinder n.56 (2008) (even though pharmacy specifically addressed and rejected the to conclude that he acted within the usual course ‘‘had 17,000 patients,’’ ‘‘[n]o amount of physician’s argument that the Agency of professional practice when he prescribed to the legitimate dispensings’’ could render undercover officers. had failed to consider his ‘‘positive 16 In his decision, the ALJ also observed that the pharmacy’s ‘‘flagrant violations [acts experience’’ in dispensing controlled Respondent’s ‘‘decision to manage a pain clinic which are] ‘consistent with the public substances to other patients. As the using a protocol that permitted the issuance of interest’ ’’), aff’d, Medicine Shoppe- Court of Appeals explained: prescriptions for controlled substances without Jonesborough v. DEA, 300 Fed. Appx. conducting physical examinations threatens the Despite Dr. MacKay’s claim to the contrary, public safety. Either through ignorance or deliberate 409 (6th Cir. 2008). the Deputy Administrator considered the indifference, [his] decision to establish such Accordingly, in Krishna-Iyer, the entire record, including the evidence in Dr. operations indicates he lacks sufficient insight and Agency held that ‘‘evidence that a MacKay’s favor. She determined, however, experience to be trusted to participate in the practitioner has treated thousands of that none of Dr. MacKay’s evidence negated controlled substances distribution process.’’ R.D. at patients [without violating the CSA] the DEA’s prima facie showing that Dr. 50–51. MacKay had intentionally diverted drugs to Given that Respondent was the only doctor at the does not negate a prima facie showing clinic, there is no need to decide whether the that a practitioner has committed acts K.D. and M.R. Indeed, she found that even evidence establishes the existence of such a inconsistent with the public interest.’’ if Dr. MacKay had provided proper medical protocol (whether written or not) or whether such 74 FR at 463. The Agency thus care to all of his other patients, that fact ‘‘operations’’ were established. As the evidence would not overcome the government’s shows, Respondent repeatedly failed to perform explained that ‘‘[w]hile such evidence evidence with regard to M.R. and K.D. physical examinations (or performed inadequate may be of some weight in assessing None of the evidence presented by Dr. exams) and then falsified the undercover officers’ whether a practitioner has credibly MacKay undermines the evidence relating to medical records to reflect his having performed shown that she has reformed her M.R. and K.D. Although numerous patients such exams; he also falsified the medical records by practices, where a practitioner commits and colleagues of Dr. MacKay related their documenting higher pain levels than those reported positive experiences with him, none had any by the undercover officers. As explained above, this intentional acts of diversion and insists evidence establishes that Respondent knowingly personal knowledge regarding his treatment she did nothing wrong, such evidence is diverted controlled substances. Indeed, the ALJ entitled to no weight.’’ Id. specifically found that Respondent violated 21 CFR 14 In light of the evidence provided by the 1306.04(a) when he issued prescriptions that lacked Subsequent to Krishna-Iyer, the undercover visits of the two patients, the Agency ‘‘a legitimate medical . . . purpose and were not Agency adhered to this rule in Dewey C. found it unnecessary to make any findings based on written in the ordinary course of [his] professional MacKay, 75 FR 49956 (2010), pet. for the expert’s chart review. 75 FR 49972. practice.’’ R.D. 83. I therefore reject it.

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four), and by itself, it is sufficient to With respect to factor four, Exception Four—The ALJ’s satisfy the Government’s prima facie Respondent contends that the ALJ took Recommended Order of Revocation is burden of showing that Respondent a ‘‘quantum leap’’ when he found ‘‘that not Warranted ‘‘has committed such acts as would Respondent intentionally kept While merged with his exception to render his registration . . . inconsistent inconsistent medical records on [the the ALJ’s factor five analysis, with the public interest.’’ 17 UC’s] pain levels in order to protect Respondent also takes exception to the himself from an audit.’’ Resp. ALJ’s recommended order of revocation, 17 Respondent also takes exception to the ALJ’s Exceptions, at 13 (citing R.D. 66). arguing that this sanction ‘‘is finding that he did not adequately address various According to Respondent, ‘‘[i]t defies red flags presented by the undercover officers. Resp. unwarranted in law and without Exceptions, at 11–12. Among the red flags cited by logic to believe that [he] would attempt justification in fact.’’ Resp. Exceptions, the ALJ were the UCs requesting specific drugs such to intentionally create a false medical at 16. He further asserts— as OxyContin, Percocet, and Opana, which are record by increasing a pain level from notwithstanding his refusal to testify— highly diverted; the UCs seeking increases in the 3 to 4 or 5 on a 1–10 scale, especially that he ‘‘has accepted responsibility for quantities of the prescriptions; a UC being unable knowing the chart accurately contains to produce his driver’s license; a UC’s report of having obtained medication from his wife; and the references to [the] pain levels activities to law enforcement authorities’’ and that UCs’ non-compliance with Respondent’s communicated by the DEA agent,’’ she and Respondent ‘‘never talked about it.’’ R.D. recommendations that they obtain MRIs or receive which are still ‘‘in the same moderate at 74. The ALJ then opined that: cortisone injections. R.D. at 79–80. range.’’ Id. a strong argument can be made for the Respondent notes that when the undercover It is true that the undercover officers’ proposition that [Respondent’s] failure to correctly officer posing as Patrick Tock requested that he be understand the law enforcement exceptions to prescribed Opana (because a friend had said it charts contain a nursing progress record HIPAA and to discuss with his staff the role law worked for him), Respondent warned him about the which accurately reflects what they enforcement plays in preventing abuse and dangers of the drug and did not prescribe the drug. reported to Respondent’s medical diversion is important. If pain management staff Resp. Exceptions, at 11. Respondent further notes assistant. That being said, Respondent members observe evidence of doctor shopping or the testimony of the Government’s expert that diversion of prescribed narcotics, those staff Respondent’s decision not to prescribe the does not challenge the ALJ’s findings members should be familiar with steps they can and medication was appropriate. Id. (citing Tr. 200). that he falsified the medical records by must take to alert the relevant authorities of Moreover, in other instances, the Government’s documenting having performed various possible illicit action. [Respondent] is responsible expert conceded that Respondent could properly tests as part of a physical examination for ensuring that his staff understands the take into consideration a patient’s ability to pay for practitioner’s role in preventing abuse and a test or procedure. Respondent thus contends that which he failed to do. Based on this diversion of controlled substances. the ALJ’s finding ‘‘ignores the undisputed evidence, as well as Respondent’s Id. at 75–76. The ALJ then found that evidence’’ and was arbitrary and capricious. Id. refusal to testify and explain the Respondent’s ‘‘office practice generally created a While I agree with the ALJ’s reasoning that ‘‘[a] disparity in the pain levels, I draw the risk to the public safety in failing to properly train his staff regarding the role of law enforcement practitioner’s failure to resolve red flags strongly same inference that the ALJ did—that suggests that the practitioner’s subsequent officers in detecting abuse and diversion of dispensation of controlled substances to that patient the pain levels were falsified (along controlled substances.’’ Id. is not for a legitimate medical purpose,’’ R.D. at 60, with the results of physical Respondent takes exception to the ALJ’s findings this is so because such evidence is probative of the examinations he did not perform) to and legal conclusions, noting that while the physician’s knowledge or intent. However, in this provide documentation to support the ‘‘HIPAA provides certain law enforcement matter, there is no need to resolve the issue of exceptions to the confidentiality of protected health 18 whether Respondent adequately addressed various prescriptions. I therefore reject information, there is no provision in HIPAA that red flags. This is so because the evidence that: 1) Respondent’s exception. requires an office practice to report ‘doctor Respondent failed to performed physical exams (as Respondent’s diversion of controlled shopping’ to law enforcement.’’ Resp. Exceptions, at well as various tests as part of the physical exams) substances is properly considered as 15. Respondent further notes that ‘‘[i]n this case, yet falsified the medical records by documenting there is not even any evidence of ‘doctor that he did, 2) falsified the medical records to evidence of his lack of compliance with shopping.’ ’’ Id. reflect higher pain levels than those actually applicable laws related to controlled I agree with Respondent that the HIPAA does not reported by the undercover officers, as well as 3) substances. So too, his failure to comply require such reporting (as well as that there is no the adverse inference to be drawn from his refusal with Ohio’s regulation which requires evidence of doctor shopping in this case). to testify, conclusively prove that Respondent acted Moreover, in this case, there is no evidence that outside the usual course of professional practice that ‘‘[a] physician shall complete and either Ohio law or the standards of professional and lacked a legitimate medical purpose when he maintain accurate medical records practice require a doctor to report a doctor shopper prescribed controlled substances to the undercover reflecting the physician’s examination, to law enforcement, and there may be valid reasons officers and thus knowingly diverted controlled evaluation, and treatment of all the why a physician, who acts entirely within the substances. bounds of both the law and the standards of Thus, to the extent Respondent failed to address physician’s patients,’’ Ohio Admin. professional practice, would take issue with the any red flags, this is simply additional evidence Code § 4731–11–02(D), is also relevant notion that his/her employees should report probative of the illegality of the prescriptions. See in assessing his compliance with instances of doctor shopping to the authorities United States v. Moore, 423 U.S. 122, 142–43 applicable laws related to controlled rather than to him or herself. (1975). Proof that a physician knowingly diverted 19 Accordingly, I reject the ALJ’s reasoning. I also controlled substances is the best evidence for substances. reject his finding of fact number twelve, to the assessing his experience in dispensing controlled extent it states that Respondent ‘‘did not provide substances, although it is also relevant in assessing 18 Contrary to Respondent, it does not necessarily training to his staff regarding exceptions to patient his compliance with applicable laws related to defy logic to conclude that he intentionally falsified privacy laws that apply when the staff members controlled substances. However, while such the record by listing a higher pain level than that observe behavior relating to controlled substance evidence is relevant under both factors two and documented by his medical assistant in the nursing abuse, misuse, or diversion,’’ R.D. at 80, as well as four, in making the public interest determination, progress record. Respondent may not have even his conclusion of law number thirteen. Id. at 86 the Agency does not adjudicate the case by bothered to read the nursing progress record. (concluding that Respondent’s ‘‘actions or mechanically counting up the number of factors 19 With respect to factor five, the Government omissions’’ constitute ‘‘other conduct which may that favor each party and declare a winner. Rather, argued that Respondent ‘‘maintained policies [that] threaten public health and safety’’ because he consistent with the statute, the Agency’s inquiry were contrary to Federal law,’’ in that his ‘‘failed to provide training to his staff regarding focuses on whether the registrant ‘‘has committed ‘‘employees were forbidden from contacting law exceptions to patient privacy laws that apply when such acts as would render his registration . . . enforcement in the event they suspected patients staff members observe behavior relating to inconsistent with the public interest.’’ 21 U.S.C. were obtaining multiple prescriptions for controlled controlled substance abuse, misuse, or diversion’’). 824(a)(4). Thus, what matters is the egregiousness substances from multiple doctors.’’ Gov. Post-Hrng. While I reject the ALJ’s finding and conclusion of the proven misconduct, the need to deter future Br., at 26. While the ALJ found that the evidence of law on this issue, I agree with the ALJ’s finding noncompliance by both the specific registrant and did not support the existence of such a policy, he that the pre-signing of prescriptions, even if there the community of registrants, and the registrant’s then noted that one of Respondent’s employees is no proof that the prescriptions were issued on a evidence of remediation and acceptance of testified that she ‘‘felt that laws regarding patient subsequent day, constitutes conduct which may responsibility. privacy prohibited her from reporting patient threaten public health and safety.

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his recordkeeping issues’’ and that Deputy Administrator issued an order to December 16, 2013, in Cleveland, and ‘‘[t]hrough his counsel, [he] states that show cause why the Administrator retained all other procedural deadlines.8 he is willing, if given the opportunity, should not revoke DEA Certificate of On December 10, 2013, the initial day to remediate these issues in order to Registration number BA3842259, issued of the hearing, federal offices were avoid future misconduct.’’ Id. This to Syed Jawed Akhtar-Zaidi, M.D., and closed due to winter weather, and I issue, however, is rendered moot by should not deny any application for ordered the cancelation of the initial 1 Respondent’s failure to file a renewal renewal or modification of the same. day of hearing.9 Upon Respondent’s application. See Darryl J. Mohr, 77 FR That certificate authorizes distribution request, a prehearing telephone 34998, 34999 (2012) (‘‘While this of controlled substances out of an office conference was held on December 12, Agency has recognized that because an located at 34055 Solon Road, Suite 201, 2 2013, in order to address pending immediate suspension order involves Solon, Ohio 44139. The order also procedural issues.10 the exercise of summary process, it is immediately suspended this DEA reviewable in a proceeding under 21 registration, under the authority found At that time I had before me the U.S.C. 824, even where collateral in 21 CFR 1301.36(e) and 1301.37(c). Government’s motion for an order in consequences exist, review of the order In the order, the Deputy limine and Respondent’s motion to is limited to challenging its factual and Administrator alleged that Dr. Zaidi’s delay the evidentiary hearing scheduled legal basis. Whether a former registrant continued registration is inconsistent to begin four days later.11 The core has accepted responsibility for his with the public interest, in that between premise relied upon by the Government misconduct has no bearing on the September 2012 and May 2013, Dr. in support of its motion was validity of the suspension order.’’). Zaidi distributed controlled substances Respondent’s failure to timely comply by issuing prescriptions under with the procedural orders set forth in Order conditions that fell outside the usual my prehearing order of October 24, Pursuant to the authority vested in me course of professional practice or were 2013, particularly with respect to the by 21 U.S.C. 823(f) and 824(a)(4), as for other than legitimate medical failure to timely identify Respondent’s well as 28 CFR 0.100(b), I affirm the purposes.3 Further, the Administrator expert witness and the substance of his Order of Immediate Suspension of DEA determined that based on reports testimony, and Respondent’s failure to Certificate of Registration BA3842259, presented to her, Dr. Zaidi’s continued provide sufficient descriptions of issued to Syed Jawed Akhtar-Zaidi, DEA registration constitutes an expected testimony.12 Further, the M.D. Also, pursuant to the authority imminent danger to the public health Government argued that witness vested in me by 21 U.S.C. 824(f), I and safety, warranting the immediate descriptions provided by Respondent’s further order that all right, title, and suspension of Dr. Zaidi’s registration, prehearing statement indicate the interest in the controlled substances which is to remain in effect until a final proposed testimony would be irrelevant seized by the Government during the determination is reached in these or otherwise inadmissible.13 execution of the Order of Immediate proceedings.4 Respondent, on the other hand, Suspension be, and hereby is, vested in On October 23, 2013, the Office of 20 sought to delay the hearing in order to the United States. Administrative Law Judges for the DEA accommodate his expert witness, whom Dated: July 13, 2015. received Respondent’s Request for a he described as having medical Chuck Rosenberg, Hearing to determine whether Dr. problems that prevented his appearance Acting Administrator. Zaidi’s continued registration would be on December 16 or 17, 2013.14 consistent with the public interest.5 Frank W. Mann, Esq., for the I granted Respondent’s request for a During the prehearing teleconference Government hearing, and in advance of the hearing on December 12, 2013, I denied Walter F. Ehrnfelt, Esq., for the I asked the parties to offer prehearing Respondent’s renewed motion to delay Respondent statements that included summaries of the hearing, finding cause had not been shown to require a delay in the RECOMMENDED RULINGS, FINDINGS proposed testimony along with testimonial segment of this proceeding. OF FACT, CONCLUSIONS OF LAW, proposed stipulations of fact, with the Respondent first sought to delay the AND DECISION OF THE Government being directed to file their hearing on November 25, 2013, the day ADMINISTRATIVE LAW JUDGE proposal by November 19, 2013, and Respondent by November 26, 2013. I before prehearing statements were due, Nature of the Case also set the matter for hearing to in order to have ‘‘adequate time to Administrative Law Judge commence on December 10, 2013, with prepare,’’ citing the difficulties in doing Christopher B. McNeil. These are non-testimonial presentations to be held so occasioned by the Government’s proceedings before the Drug at the DEA’s hearing facility in ‘‘prehearing seizure of effectively all of Enforcement Administration and the Arlington, Virginia, and with testimony Respondent’s liquid assets.’’ 15 I United States Department of Justice, to be taken during the week beginning considered the balancing of under docket number 14–2, captioned January 6, 2014, in Cleveland, Ohio.6 convenience to the litigants, witnesses, In the Matter of Syed Akhtar-Zaidi, M.D. On November 6, 2013 I received the counsel, and the Office of The proceedings are being held parties’ consent motion to accelerate the Administrative Law Judges, the pursuant to sections 303 and 304 of the hearing.7 Upon this motion on complexity of the case, and whether Controlled Substances Act, Title 21 November 6, 2013, I ordered the denial of the request would result in United States Code sections 823 and testimonial hearing to begin on 824. 8 ALJ Ex. Six. On October 8, 2013, the Drug 1 ALJ Ex. One at 1. 9 ALJ Ex. 21. Enforcement Administrator through her 2 Gov’t Ex. One. 10 ALJ Ex. 24. 3 ALJ Ex. One at 1–3. 11 See ALJ Exs. 22 & 20. 4 12 20 For the same reasons that led me to Id. at 4. ALJ Ex. 20. immediately suspend Respondent’s registration, I 5 ALJ Ex. Two at 1. 13 Id. conclude that this Order should be effective 6 ALJ Ex. Three. 14 ALJ Ex. 22. immediately. 21 CFR 1316.67. 7 ALJ Ex. Five 15 ALJ Ex. Nine.

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identifiable prejudice to Respondent.16 as scheduled, and found no substantial which had been scheduled for Upon considering these factors I found prejudice had been demonstrated. I also December 10, 2013.23 Although I found cause had not been shown to delay considered the potential importance of sufficient cause including clear either the scheduled hearing or the pre- the testimony being sought, should a prejudice to the Government due to hearing deadlines. delay be granted. Upon weighing these Respondent’s failure to comply with my I received Respondent’s second factors and exercising the discretion prehearing order, Respondent was not request to delay the hearing on delegated to me,22 I found cause had not barred from testifying but his testimony December 6, 2013.17 This was based on been shown to delay the testimonial was limited to responding to the areas the representation that an expert portion of this proceeding. I also of inquiry presented in the witness, Richard Stieg, M.D., would be permitted Respondent to proffer the Government’s prehearing statement unavailable on the dates set for medical expert’s report for the along with any areas set forth in a more hearing.18 I considered the factors set Administrator’s review, so that the complete summary which I allowed to forth above, and found cause had not hearing could proceed expeditiously be filed by not later than 2 p.m. on been shown to delay the hearing in an while allowing Respondent to present Friday, December 13, 2013. Although order dated December 6, 2013.19 On the substance of that report to the Respondent filed a ‘‘Brief in Opposition December 12, 2013, I received Administrator, for her consideration. to the Government’s Motion in Limine’’ Respondent’s motion for Further, I granted the Government’s describing testimony he would elicit reconsideration of the order denying motion for an order in limine, finding from other witnesses,24 he provided no Respondent’s second requested the proffer of testimony presented with supplemental statement describing the continuance.20 In denying the motion respect to witnesses Elizabeth and Larry scope of his own testimony. during the prehearing teleconference, I Bloch, Patricia Gray, Carolyn Hamilton, When the parties convened in considered the premises presented in Beverly and Virgil Humphreys, James Cleveland for the testimonial portion of support of the motion, including the Justice, Greg Ratesic, Lorinda Rose, and the hearing, acting on the advice of his premise that the continuance was Carl Shortridge was insufficient to attorney, Dr. Zaidi exercised his needed to permit Respondent’s medical establish that their testimony would be constitutional right against compulsory expert to testify. relevant to the issues before me. I found self-incrimination and, after being In reviewing Respondent’s prehearing Respondent’s proffer of testimony from sworn and identifying himself, declined statement and each supplement thereto, his employees Christi Barrett, Julie to answer questions presented to him on I found that the proposed expert Brzozwski, and Ricki Zotto was direct examination by the witness’s testimony as summarized by untimely and was insufficient to Government.25 The Government Respondent did not need to be establish that their testimony would be presented the testimony of its medical presented at the same time as the rest of relevant, and for those reasons I expert, four investigative witnesses, and the testimony being offered, and could sustained the motion with respect to Dr. Zaidi’s billing clerk. Dr. Zaidi be taken out of order without prejudice those three witnesses. I noted that presented no testimony, but offered to Respondent. I further found that the Respondent’s employee, Kim Maniglia, documents which have been identified evidence would likely have little was identified as a Government witness as proffers and have been included in probative value, as the witness did not and determined that there was no the record for the Administrator’s appear to be familiar with Ohio medical reason to bar her from testifying on review. I did not, however, consider practice standards. I also considered the behalf of Respondent. Respondent’s proffered exhibits in uncertain nature of the length of the With respect to testimony from reaching my Recommended Decision. delay that would be needed to Respondent’s expert, I found sufficient accommodate Dr. Stieg. prejudice had been shown by the Summary of the Evidence Additionally, I considered the Government to sustain its motion and The Government’s case was presented potential adverse effects of such an bar the testimony of Dr. Stieg, due to the through testimony of three undercover uncertain delay in resolving this matter. untimely disclosure of the identity of agents who posed as patients; Dr. In this regard I am guided by the the expert and the nature of his Zaidi’s billing clerk, Kim Maniglia; expectation that where doing so is not testimony, and due to the lack of detail Diversion Investigator Scott A. Brinks; inconsistent with a litigant’s rights in the description of the proposed and Steven Severyn, M.D., who testified under the Due Process Clause or the testimony, including the description as the Government’s medical expert.26 Administrative Procedure Act, I should presented in Respondent’s December 12, endeavor to submit the certified record 2013 supplemental prehearing Testimony of the Government’s Medical of these proceedings to the statement. Expert Administrator in accordance with 21 Regarding the lack of specificity and Dr. Severyn practices medicine at the CFR 1316.65 not later than the 150th detail provided regarding Respondent’s Comprehensive Spine Center located at day after the issuance of an immediate own testimony, I found Respondent’s The Ohio State University Wexner suspension (excepting any days caused prehearing statement did not comply Medical Center, in Columbus, Ohio.27 by Respondent’s own actions).21 I also with my prehearing order in that it did He is licensed to practice medicine in considered the possible prejudice to not indicate clearly each and every Ohio, and serves as the Director of the either party were the hearing to proceed matter as to which he intended to Pain Medicine Services office of the testify. While cause had been shown to Medical Center’s Department of 16 See Fitzhugh v. Drug Enforcement bar Respondent’s testimony, the Anesthesiology, the Director of the Administration, 813 F.2d 1248, 1252 (D.C. Cir. Government did not seek to bar Medical Center’s Pain Medicine 1987). Respondent from testifying but instead 17 Fellowship, and the Director of the Pain ALJ Ex. Seventeen. sought to have Respondent supply the 18 Id. 19 ALJ Ex. Eighteen. required summary prior to the 23 ALJ Ex. 20 at 7. 20 ALJ Ex. 22. conclusion of the first day of hearing, 24 ALJ Ex. 25. 21 See Memorandum re: Immediate Suspension of 25 Tr. at 50. DEA Registration; Hearing Process DFN: 301–01, 22 See Richard A. Herbert, M.D., 76 FR 53942–02, 26 Id. at 51. October 4, 2006 at 1 (copy attached as Appendix). 53942 (DEA Aug. 30, 2011). 27 Id. at 52.

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Services section of the Spine Center.28 transcripts from those interactions, and inaction’’ and equals the minimal He is an assistant professor of clinical the medical records maintained by Dr. standard of care.49 anesthesiology, teaching on almost a Zaidi regarding the treatment of these Dr. Severyn noted that when referring daily basis in clinical and educational three patients.40 In his review, Dr. to the minimal standard of care capacities, and practices in the Spine Severyn applied his understanding of throughout his testimony, he regards Center and throughout the hospitals of provisions in Ohio law, including this as describing the standard of care The Ohio State University.29 He section 4731–21–02 of the Ohio for pain medicine physicians.50 He estimated that 50 percent to two-thirds Administrative Code, regarding the noted further that his own practice of the patients he treats for pain are treatment of intractable chronic pain.41 differs from many pain medicine prescribed controlled substances for that Based on this review and applying his practices because his patients all have pain.30 understanding of the requirements for been referred to his clinic by other Dr. Severyn holds a baccalaureate the treatment of pain using controlled medical providers in the OSU health degree from Johns Hopkins University, substances applicable in Ohio, Dr. care system.51 In this respect, Dr. a medical degree from The Ohio State Severyn concluded that Dr. Zaidi Severyn distinguished what a University, a master’s degree in business prescribed controlled substances to each reasonable physician would do at the administration from Ohio University, of these patients outside the usual initial appointment from what he does and a master’s degree in strategic course of professional practice 42 and for in his own practice, because in the studies at the United States Army War other than a legitimate medical initial appointment stage of his own College.31 He completed an internal purpose.43 practice all of his patients are either medicine residency at Riverside In reaching these conclusions, Dr. referred by other OSU medical offices or Methodist Hospital, as well as a Severyn noted the requirements found have recently undergone emergency residency in anesthesiology at The Ohio in the Ohio Administrative Code treatment.52 State University.32 He holds board regarding the use of controlled Beyond this, however, Dr. Severyn certifications with the American Board substances for the treatment of pain.44 stated that in a pain medicine practice, of Internal Medicine, the American According to Dr. Severyn, there are ‘‘additional requirements for Board of Anesthesiology, and that the specificity and the degree of detail Board’s pain medicine subspecialty.33 When selecting a treatment for a patient, in keeping medical records when In his current medical practice, Dr. the first principle is evaluation, establishing prescribing controlled substances on a of a diagnosis, the considering of alternative Severyn works full time in the sub- protracted basis, greater than twelve 34 treatments in making a recommendation to a specialty of pain medicine. He stated patient [in] regard to treatment, a provision weeks,’’ calculated from the initial 53 that on a typical clinical day he will of the risk of each of those alternatives, and prescribing encounter. He said, encounter approximately 30 patients, then the treating of the patients in a way that however, that there is no federal or state and on a typical surgical day he will conforms with current professional standards law that defines the types or amounts of perform between three and six operative of care.45 drugs that should be prescribed in any 35 procedures. He explained that his Further, he stated that one part of the particular situation—that this is a 54 patients predominantly are persons professional standard of care for such decision to be made by the doctor. without cancer-related diagnoses who providers is that when prescribing That decision, according to Dr. Severyn, are seen on an out-patient basis and are controlled substances for the treatment is to be based on ‘‘[e]xpertise, experiencing acute and chronic of pain, a provider must take into experience, intensity of service, intractable pain, although some are account the medication’s potential for diligence of work, assessment of the treated on an in-patient basis for post- diversion and abuse.46 In addition, in situation, integration of all available 36 operative pain. those cases where controlled substances information, previous red flags [and] Dr. Severyn stated that he has been current events.’’ 55 are being considered as part of the qualified in the past as an expert Dr. Severyn explained that before a treatment plan, ‘‘the standard of care, witness in matters concerning the physician may prescribe controlled and the prevailing practice of evaluation and treatment of patients substances for pain, he or she must physicians, is to perform a diligent and using controlled substances, for both the reach a medical diagnosis and a very sophisticated and intense DEA and the United States Department determine the appropriate treatment evaluation.’’ 47 In this context, Dr. of Justice.37 Without objection, Dr. plan.56 In the treatment plan, the Severyn stated that the minimal Severyn was recognized as an expert in physician and patient interact, ‘‘availing standard of care would be ‘‘those the field of pain management in these themselves of alternative approaches for actions and decisions that would be proceedings.38 care, and will go about certain actions’’ made by a reasonable physician under In preparing to testify in this matter, regarding both procedures and similar circumstances.’’ 48 Dr. Severyn reviewed video recordings ‘‘It medication, which may then ‘‘be re- of interactions between undercover establishes,’’ according to Dr. Severyn, evaluated at a later time, so as to agents Parkison, Leonard, and Moses, ‘‘what would be the least degree of determine the efficacy of the original response or establishes the least degree and Dr. Zaidi.39 He also read the plan.’’ 57 of care in the provision of treatment, Such a treatment plan would need to 28 Id. at 52–53. when a physician is faced with a include ‘‘regular follow up and 29 Id. at 53–54, 58–59. clinical decision, resulting in action or monitoring, not only of the patient 30 Id. at 166. 31 Id. at 54. 40 Id. at 61–62. 49 Id. at 204–05. 32 Id. 41 Id. at 167. 50 Id. at 205. 33 Id. at 56. 42 Id. at 104, 130, 153. 51 Id. at 263. 34 Id. at 55. 43 Id. at 103, 130, 153. 52 Id. 35 Id. at 58. 44 Id. at 62. 53 Id. at 64, 256. 36 Id. at 55. 45 Id. 54 Id. at 206. 37 Id. at 60. 46 Id. at 63. 55 Id. at 207. 38 Id. at 61. 47 Id. at 65. 56 Id. at 65. 39 Id. 48 Id. at 204. 57 Id. at 65–66.

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condition, but also of the response to standard.’’ 66 He added, however, that red flags.77 After noting that time- treatment.’’ 58 Monitoring in this context the ‘‘Web site does contain a number of released OxyContin ‘‘can be converted is performed through ‘‘medical causes for a physician to be suspic[ious] to immediate release Oxycodone by encounters, history, physical, imaging that the seeking of the medication may crushing or chewing or otherwise studies, social history, family history, not be strictly for the treatment of the altering it,’’ Dr. Severyn stated that response to medications, and it takes condition for which the physician while there is some protection against time to develop that, and also, attention intends to prescribe.’’ 67 abuse, ‘‘the choice of a time release to other details, accuracies, and any When asked whether he believes medication is less driven by red flags unusual events that are occurring,’’ community-based pain management and the issue of abuse than it is driven along with reviewing the OARRS clinics (i.e., clinics not in an academic by the intent to follow a medical report.59 The resulting plan ‘‘needs to setting) have a place in medicine and treatment plan that provides a more include the thought processes of the serve a legitimate purpose, Dr. Severyn steady state of medication.’’ 78 He said physician’’ in order to fulfill ‘‘the said they certainly do have a role.68 He time-release OxyContin is ‘‘less likely, physician’s fiduciary responsibility to also agreed with the proposition, asked to a degree, to lead to diversion or to the patient.’’ 60 during cross examination, that the lead to addiction, but . . . [i]t’s only to In those cases where a physician in patient’s ability to pay ‘‘does have more a degree that makes it a little more Ohio prescribes controlled substances relevance now than it did in the past difficult for the patient who seeks to be for pain on a protracted basis, which in few years, in the informing of a abusing the medication or seeks to this case means for greater than twelve physician’s recommendation or offer of divert the medication, to do so weeks, Dr. Severyn said that the care to the patient.’’ 69 When asked, successfully.’’ 79 physician must obtain the patient’s however, whether he would dismiss a Two of the undercover agents consent and inform the patient of the patient who elected (on the basis of represented to Dr. Zaidi they suffered risks and benefits associated with such cost) to forgo a recommended MRI, Dr. from pain or stiffness in the lower 80 a treatment plan.61 Dr. Severyn said the Severyn said he would dismiss the back. When asked what he does when consent needs to be in writing and patient ‘‘[i]f I felt strongly enough about a patient presents with a complaint of 70 needs to reflect that the physician has it.’’ Elaborating, he said that if a back pain, Dr. Severyn gave this educated the patient ‘‘as to the nature of patient was presenting signs and response: the condition, makes a recommendation symptoms ‘‘of a worsening nerve I want to find out some basic information about the approach for care, describes injury’’ and if he felt the patient’s health about the patient. Where is your pain? Does the risks of each of those alternatives, ‘‘would be permanently impaired it radiate into the legs? For how long have describes the benefits of each[,] and . . . because of a nerve injury and if the you had it? What makes it better? What 62 patient continued to insist that they makes it worse? Have any procedures or explores alternative approaches.’’ surgeries been done to make a difference in Also in cases where treatment is on a were not going to or be able to obtain an MRI, I would seriously consider this, in the past, and zero to ten, what is your protracted basis, the physician needs to 71 severity of pain? Have you had physical assess the patient’s functional status, withdrawing care from that [patient].’’ therapy? Has that been helpful for you in the Another resource available to which includes determining how the past? Might it be something to consider physicians in Ohio, according to Dr. pain is interfering with the patient’s again? Then I look at the OARRS report, Severyn, is the Ohio Automated Rx ability to work, with activities of daily because I want to know how accurate is my Reporting System, or OARRS.72 Asked patient’s reported history in comparison to living, with social activities, and with during cross examination whether what has already been documented as being the quality of family life.63 consulting this reporting system dispensed. Next, I look through the medical Dr. Severyn agreed with the constitutes an attempt by a physician to record to see if at Ohio State, during any of proposition, presented during cross address a red flag, Dr. Severyn said yes, the time that the patient has been seen, there examination, that it will sometimes take is a urine drug screen present. If so, I copy ‘‘OARRS reports are tremendously it into the medical record and make a a period of time and a number of visits helpful and the requirement to check for a physician to observe and evaluate decision, then and there, if I’m going to be them, as a standard of care, is valid.’’ 73 obtaining another one.81 a patient with respect to red flags Dr. Severyn was asked if he knew Dr. Dr. Severyn explained that because associated with controlled substance Zaidi conducted such a check on each 64 his practice at The Ohio State diversion, misuse, or addiction. When patient.74 Dr. Severyn indicated that he University is a referral practice, the asked about the length of time Dr. Zaidi was not aware that this was a part of Dr. patients he sees usually are being cared spent monitoring the progress of the Zaidi’s prescription practice.75 There is, for by other members of OSU’s medical cases of the three undercover agents, Dr. however, some evidence from Ms. staff.82 He said if he is prescribing Severyn opined that the five or six Maniglia that she would print out an controlled substances he will order a months spent was a ‘‘moderate’’ amount OARRS report for every new patient.76 of time.65 He also explained that while Dr. Severyn also was asked whether urine drug screen, and ‘‘go through all the DEA maintains on its Web site a list transitioning from an immediate-release of the areas of the portion of the of relevant red flags, he personally was form of Oxycodone to a time-released administrative rule that pertains to the ‘‘not familiar enough with that Web site form is another means of responding to initial prescribing’’ of controlled and each and every flag, for me to say substances.83 After that, he will review that I’m going to use that as my only 66 Id. at 172. ‘‘the past medical history, which, of 67 Id. course, is medical history, surgical 58 Id. at 66. 68 Id. at 182. history, medication history, [and] social 59 Id. at 223. OARRS is the Ohio Automated Rx 69 Id. at 184–85. Reporting System. Tr. at 471, 602. 70 Id. at 185. 77 Id. at 180. 60 Tr. at 233. 71 Id. 78 Id. 61 Id. at 67. 72 Id. at 178. 79 Id. at 213–14. 62 Id. 73 Id. 80 Gov’t Ex. Nine at 3; Gov’t Ex. Ten at 6. 63 Id. at 68. 74 Id. 81 Tr. at 216–17. 64 Id. at 173. 75 Id. 82 Tr. at 220. 65 Id. at 224–25. 76 Id. at 414. 83 Id.

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history. After that, it’s going to be a asked to elaborate on this during cross out the report and puts them in the new review of symptoms, which is about 50 examination, Agent Parkison said that patient’s file for Dr. Zaidi to review.105 specific symptoms to do, and then I’m based on his experience, Dr. Zaidi’s The reports indicate what prescriptions going to go through my physical prescriptions for Schedule II drugs the patient is getting and what doctors examination.’’ 84 He would then check seemed high when compared with ‘‘a the patient has seen.106 According to for imaging, if any is available, and couple’’ of other physicians he had been Ms. Maniglia, after Dr. Zaidi sees a following that he would make his investigating.94 Given this information, patient, the patient’s medical chart assessment and diagnosis, which he will Agent Parkison ‘‘decided to schedule an comes to her, at which point she reads discuss with the patient.85 From there, office visit at Pain Management of what Dr. Zaidi has written and logs the patient must decide the course of Northern Ohio.’’ 95 prescription information into the back action based on Dr. Severyn’s In his investigation of Dr. Zaidi, Agent of the chart.107 After the patient is seen, recommended course of action, after Parkison acted in an undercover she shreds the OARRS report.108 which prescriptions can be written capacity under the name Tyler According to Ms. Maniglia, Dr. Zaidi along with any other orders, and Williams,96 and also was part of the requires urine drug screening for all arrangements are made for follow up team that executed a search warrant and new patients, and uses such screens visits.86 retrieved records from Dr. Zaidi’s periodically throughout the patient’s office.97 He acknowledged, during cross treatment.109 She added that if a patient Dr. Zaidi’s Treatment of Officer Tyler examination, that he approached Dr. does not ‘‘have good urine Dr. Zaidi Parkison (Under the Name Tyler Zaidi as an undercover agent intending usually writes on the bottom not to fill Williams) to falsely report that he had pain, but he any scripts for them’’ or may indicate Tyler Parkison is a DEA Special denied attempting to fool Dr. Zaidi.98 ‘‘NPUS’’ on the chart, to direct ‘‘no Agent, a position he has held since Agent Parkison’s first of five visits to prescriptions until seen.’’ 110 Based on 2008.87 Between 2005 and 2008 he was Dr. Zaidi’s office was recorded in audio what Dr. Zaidi has written, Ms. Maniglia a DEA Diversion Investigator, having and audio/video recordings, the will write the prescription information graduated from the DEA’s twelve-week transcripts of which are in our record.99 on a blank prescription form.111 She training academy at Quantico, Agent Parkison explained that the first said that Dr. Zaidi would sign blank Virginia.88 As a diversion investigator, visit took place on September 11, 2012, prescriptions in the morning, and after Agent Parkison was trained in the and confirmed that Government Exhibit they were signed she would fill out the investigation of criminal and regulatory 3a contains a video recording of that prescriptions throughout the day, using cases, including those involving drug visit.100 I viewed this video, and found the signed forms.112 audits and identification and the that Dr. Zaidi’s medical office appears to Ms. Maniglia explained that there execution of warrants.89 Agent Parkison be furnished and staffed in a manner may be days when prescriptions that Dr. has been trained in the use of firearms, similar to many office practices: The Zaidi has signed are not actually needed undercover operations, surveillance, office is located in an office complex, that day, so ‘‘[t]here might have been a physical fitness, financial and upon passing through a hallway, few left over,’’ but when that happens investigations, and drug Agent Parkison opened the door to find the signed prescriptions are stored identification.90 a reception area in which a receptionist ‘‘triple-locked up in the drug cart’’ and Agent Parkison stated that the took his name and driver’s license, are used the next day.113 Ms. Maniglia investigation into Dr. Zaidi’s while a billing clerk (later identified as acknowledged that some of these prescription practice began after an Kim Maniglia) spoke on the telephone prescriptions have been for controlled agent in his office received a complaint regarding authorization for an imaging substances.114 She said Dr. Zaidi trained indicating ‘‘suspicious prescribing procedure and another staff member in her in this aspect of her job, and she has involving controlled substances’’ along clinical garb entered and left the performed these tasks for more than with a complaint alleging a family receptionist’s office.101 twelve years.115 When asked whether member of the complainant ‘‘was Ms. Maniglia explained that she has Dr. Zaidi ever mentioned the need to addicted to Dilaudid’’ and an allegation been employed at Pain Management of have a patient’s address on the that ‘‘there were drug transactions Northern Ohio for twelve and a half prescription, Ms. Maniglia said no, even taking place in the parking lot’’ of Dr. years.102 She said Dr. Zaidi owns the with prescriptions for controlled Zaidi’s practice.91 Included in the report business, and that she does all of the substances, ‘‘we just need two by the complainant was the assertion billing for the business, and also works identities, just the birth date and the that ‘‘patients were going in and out at the front desk.103 She explained that name.’’ 116 very quickly, that they were seeing up while she has no medical training and Affixed to the window separating the to ten to fifteen people in an hour.’’ 92 does not participate in patient waiting area from the receptionists Acting on this information, Agent treatment, she does have a role in filling office are stickers indicating payment Parkison obtained a report from OARRS out prescriptions for the office.104 She could be made using Visa, Diners Club, setting forth the prescription history for stated that for every new patient, Dr. MasterCard and Discover, along with a Dr. Zaidi, revealing that ‘‘the amounts of Zaidi runs an OARRS report—she prints sign that states the staff is not permitted Schedule II drugs that he was 93 prescribing was very high.’’ When 94 Id. at 436. 105 Id. at 414. 95 Id. at 321. 106 Id. at 415. 84 Id. 96 Id. at 309. 107 Id. at 407. 85 Id. at 221. 97 Id. at 299. 108 Id. 86 Id. 98 Id. at 445. 109 Id. 87 Id. at 296. 99 Gov’t Exs. 3a through 3e; Gov’t Ex. Nine. 110 Id. 88 Id. 100 Tr. at 300–01. 111 Id. 89 Id. at 297. 101 Gov’t Ex. 3a, folder AudioVideo Recordings— 112 Id. 90 Id. at 299. 09–11–12, file 105605 at 10:57:05–10:59:43. 113 Id. at 408–09. 91 Id. at 320. 102 Tr. at 406. 114 Id. at 410. 92 Id. 103 Id. 115 Id. at 428–29. 93 Id. at 320–21. 104 Id. at 407. 116 Id. at 429.

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to accept any homemade food, and She did, however, recall being asked by to conduct an initial review of current another that states co-payments are to be law enforcement officers during the symptoms with the patient, and paid at the time of the office visit.117 search of Dr. Zaidi’s office, about thereafter Dr. Zaidi would briefly meet The waiting area is appropriate in size, patients who might be involved in with the patient and determine whether judging from the eight to ten office doctor shopping.128 She said the officer to continue to prescribe controlled chairs that were visible in the video, who claims she told him she was not substances.138 and was sufficient for the three or four allowed to report such patients to law Christy Barrett, a member of Dr. patients waiting in the room.118 enforcement misunderstood her—that Zaidi’s office staff, conducted an intake The receptionist area appeared to be under HIPAA ‘‘we weren’t allowed to interview with Agent Parkison, lasting equipped with telephones, computers, discuss anything’’ regarding such approximately nine minutes.139 During fax, copy, or multifunction machines, patients.129 Apparently Ms. Maniglia this interview, Ms. Barrett took Agent and file cabinets that typically are found understood that under HIPAA, staff Parkison’s blood pressure; pulse; and in offices of this size.119 The overall members were not permitted to contact pulse oxygen levels; asked his height impression was that this was a fully law enforcement due to ‘‘patient and weight; inquired about his level of functional small medical practice. confidentiality,’’ but she added that her pain and location of pain; use of According to Agent Parkison, Dr. Zaidi understanding was not the result of tobacco, alcohol, and caffeine; past was the only doctor at the office of Pain instructions from Dr. Zaidi.130 Rather, surgeries and physical therapy; past Management of Northern Ohio.120 There her understanding of this restriction was MRIs; use of blood thinners; and could was no evidence that the office accepted based on her work ‘‘in the field for 20 be seen filling out the medical intake only cash, or that it refused to treat years and we’re not allowed to talk form.140 She then went through the persons covered by insurance. In fact, about any patient confidentiality contents of a pain management contract, Ms. Maniglia can be heard on the phone stuff.’’ 131 She denied, however, being which Agent Parkison had signed prior confirming approval for a ‘‘three-level instructed not to call authorities if there to this interview.141 At the end of the lumbar discogram,’’ which suggests she were dirty urine screens or if an OARRS intake interview, she directed Agent was confirming this service would be report showed multiple doctor Parkison to provide a urine sample for paid for by the patient’s health encounters, adding, ‘‘We’ve never talked a drug screen.142 132 insurance.121 During the hearing, Ms. about it.’’ The doctor’s examination took place Maniglia explained that on average, the At the time search warrants were in a room that appeared to be well- office will deposit about $3,000 per being executed, DEA Diversion equipped with modern, functional week in cash, but that most of the office Investigator Scott Brinks questioned Dr. 133 furnishings, including a full-size gross receipts, roughly 80 percent, come Zaidi regarding his office practice. examination table.143 Dr. Zaidi greeted from insurance providers.122 Investigator Brinks said Dr. Zaidi Agent Parkison as ‘‘Mr. Tyler,’’ consented to the interview, and when Ms. Maniglia was asked to recall what reviewed papers contained in a folder, asked about pre-signed prescriptions she was asked when DEA agents came and asked questions regarding his found in the office, responded by telling to Dr. Zaidi’s office to search the medical history for approximately one 123 Investigator Brinks that he did pre-sign premises. She said the agent, whom minute.144 Although Agent Parkison them, and agreed that they were she referred to only as Damien, asked told Dr. Zaidi he did concrete work, presently blank but for the signature.134 about Dr. Zaidi’s children, the car he there was never any discussion about 124 Investigator Brinks also stated Dr. Zaidi drives, and his religion. She said they whether the work involved heavy lifting confirmed writing a prescription for also asked if Dr. Zaidi kept controlled or any other physical activity.145 Also, Vicodin to his daughter.135 He added, substances in the office, and she although Agent Parkison wrote in his however, that he did not know whether responded that he does not, not even history that he had a work-related 125 the prescription was for emergency samples. injury, during the interview with Dr. Ms. Maniglia also testified about what treatment, nor whether the prescription was ever filled.136 Zaidi he denied being injured; yet, she told DEA investigators with respect according to Agent Parkison, this to doctor shopping. She said she In addition to providing insight into the operations of Dr. Zaidi’s medical inconsistency was never addressed by understood doctor shopping involved Dr. Zaidi.146 patients going to different doctors in office at the time of the execution of the Dr. Zaidi discussed Agent Parkison’s order to get multiple prescriptions for DEA’s search warrant, the Government hypertension, and then had Agent controlled substances.126 also included in the record transcripts She was asked Parkison stand, bend from the waist whether she was aware of any instances and recording showing how Dr. Zaidi’s office staff handled patient visits. forward then back, walk on his toes and where Dr. Zaidi’s patients may have heels, and thereafter told Agent been accused of doctor shopping, and Generally, a staff assistant would conduct an initial intake interview with Parkison he had slight scoliosis, ending responded that she has ‘‘nothing to do the examination after approximately 60 with the patients’’ when they are in the the patient, and then Dr. Zaidi would back being examined by Dr. Zaidi.127 review the intake forms and meet with the patient.137 At subsequent office 138 See, e.g., Gov’t Ex. 3a, folder AudioVideo Recordings 09–11–12, file 115238. 117 visits, the staff member would continue Gov’t Ex. 3a, folder AudioVideo Recordings— 139 Gov’t Ex. 3a, folder AudioVideo Recordings 09–11–12, file 105605 at 10:59:08–09. 09–11–12, file 114021. 118 128 Id. at 11:00:37–11:01:27. Id. at 411. 140 Id. at 11:40 to 11:47; Gov’t Ex. Twelve at 19. 119 129 Id. at 10:57:44–10:57:46. Id. 141 Gov’t Ex. 3a, folder AudioVideo Recordings 120 Tr. at 339. 130 Id. at 412. 09–11–12, file 114021 at 11:47 to 11:49; Gov’t Ex. 121 Gov’t Ex. 3a, folder AudioVideo Recordings— 131 Id. Twelve at 25. 09–11–12, file 105605 at 10:57:51–10:58:13. 132 Id. at 416. 142 Gov’t Ex. 3a, folder AudioVideo Recordings 122 Tr. at 426. 133 Id. at 618. 09–11–12, file 114021 at 11:49 to 11:51. 123 Id. at 420–21. 134 Id. at 618–19. 143 Gov’t Ex. 3a, folder AudioVideo Recordings 124 Id. at 421. 135 Id. at 619. 09–11–12, file 115238. 125 Id. 136 Id. at 620. 144 Id. at 11:54 to 11:55. 126 Id. at 410. 137 See, e.g., Gov’t Ex. 3a folder AudioVideo 145 Tr. at 331. 127 Id. Recordings 09–11–12, file 114021. 146 Id.

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seconds.147 After confirming he had no ultimately be receiving it for longer than biceps, and triceps.’’ 167 Further, there is medical insurance, Dr. Zaidi told Agent twelve weeks.’’ 158 an entry indicating normal range of Parkison that he would order an MRI, Dr. Severyn noted that the patient ‘‘is motion in all the joints of the upper but it would be acceptable if Agent acknowledging no past medical history, extremities, but such an examination Parkison elected to wait for two weeks no past surgical history, and having did not occur, according to Dr. before getting the imaging, and added been completely healthy all of his life’’ Severyn.168 that there was a source for MRIs that until two weeks prior to the visit, when Dr. Severyn noted that Dr. Zaidi would provide the service for $350 to he experienced lower back pain.159 reported mild scoliosis without uninsured patients of the office, if that Rating his pain at a four (on a ten-point deformity, but also that the lower was what Agent Parkison decided to scale), the patient did not acknowledge extremities were normal with respect to do.148 having any pain radiating to his legs, sensation and strength, and that the Without discussing the possibility of nor any weakness or numbness; and ‘‘[a]bdomen is soft and nontender.’’ 169 physical therapy or home exercises,149 indicated he was employed as a Dr. Severyn said that Dr. Zaidi certainly Dr. Zaidi wrote a prescription for 20 concrete worker at a construction would have seen the patient walk as tablets of Percocet five mg,150 charged a company at the time of the office part of the office visit, and would $300 fee for the office visit,151 and visit.160 thereby be able to report that the directed that Agent Parkison return in When Dr. Severyn compared what patient’s balance and coordination were two weeks.152 Dr. Zaidi added that they was in the written medical chart 161 normal, and confirmed that Dr. Zaidi could discuss whether epidural with what he observed while watching had the patient perform heel and toe injections might help, asked additional the audio/video recording of the initial walking (which were described as 170 questions regarding Agent Parkison’s office visit, he noted the following. normal). He did not, however, see Dr. medical history and ended the visit First, he noted that the written medical Zaidi touch the patient’s abdomen to (although at this time Dr. Zaidi took no chart indicates that the patient’s pupils test it for softness and for the presence 171 further notes while on camera).153 154 were equal when reacting to light, and of tenderness. Next, Dr. Severyn said that while the After confirming that he reviewed the explained that to make this medical records indicate a chest undercover recordings and the entire determination, ‘‘[the] physician needs to examination was performed, ‘‘to do that medical record maintained by Dr. Zaidi shine a light into one pupil and then requires the use of a stethoscope, and a regarding treatment of Agent Parkison into the other pupil. And I didn’t find stethoscope was nothing that I could (under the name Tyler Williams), Dr. any evidence in the video recording or observe during any of the recording of Severyn expressed opinions regarding in the transcript that that was this encounter.’’ 172 He said the same both Dr. Zaidi’s physical examination of occurring’’ during this office visit.162 Similarly, he found the written entry was true regarding the notation of Agent Parkison and the medical history normal heart sounds—heart sound indicating that the oral mucosa (i.e., the that supported Dr. Zaidi’s decision to examinations require a stethoscope, but inside of the mouth) was moist and prescribe controlled substances to this none was observed during the video 155 pink, but saw no evidence that the patient. As noted above, prior to recording of this examination.173 patient was ever asked to open his meeting with Dr. Zaidi, Agent Parkison Dr. Severyn opined that the report of mouth while Dr. Zaidi examined its met with and was interviewed by this patient’s examination was falsified 156 interior.163 Christy Barrett. Dr. Severyn opined in that ‘‘it is embellished, and it is that when Ms. Barrett took Agent Next, Dr. Severyn noted that a cranial inaccurate, to the point that much of it, Parkison’s blood pressure and pulse nerve examination was indicated in the though documented here, was not written notes.164 He explained that an oximetry readings, inquired of his performed.’’ 174 Moreover, in his examination of the cranial nerve is medical history, and inquired of his opinion, the medical history described a 157 conducted by touching the neck to pain level and functional capacities, patient with ‘‘an acute condition of mild determine the size of the thyroid gland, ‘‘that encounter and the collection of severity and of a generally benign and by touching the armpits to information satisfies the requirement of nature’’ that would not ‘‘justify determine whether the axillary lymph a minimum standard of care’’ for taking prescribing a controlled substance or nodes were enlarged—neither of which the history of a patient, but not ‘‘for relying upon a controlled substance as were performed during this initially prescribing a controlled the predominant approach to examination.165 Also included in such substance to a patient who will treatment.’’ 175 an examination is a range of motion test Also of concern, according to Dr. 147 Gov’t Ex. 3a, folder AudioVideo Recordings for the neck, which Dr. Severyn said he Severyn, was Dr. Zaidi’s diagnosis 09–11–12, file 115238 at 11:55:17 to 11:56:15. did not find in the recording or the indicating thoracic and lumbar 148 166 Id. at 11:56:16 to 11:57:300. transcript. radiculitis. Dr. Severyn stated: 149 Tr. at 333. Similarly, although the medical 150 Percocet is the brand name of a combination record indicates normal sensory and Radiculitis is a diagnosis of nerve root of Oxycodone and Acetaminophen. Tr. at 254. motor testing, ‘‘[t]here was no testing dysfunction at the level of the spine, at the 151 Tr. at 309. level where the nerve roots exit the spine. If 152 Gov’t Ex. Nine at 8. that went on with sensation of the arms, it is lumbar radiculitis, then it is a nerve root 153 Gov’t Ex. 3a, folder AudioVideo Recordings the hands, or the range of motion or that’s exiting in the lumbar area, and so for 09–11–12, file 115238 at 11:56:38 to 11:58:16. strength of the fingers, the wrists, the the thoracic area, radiculitis is a condition 154 Gov’t Ex. 3a also included files 111619, 112129, and 112930. After I watched and listened 158 Tr. at 237–39. 167 Gov’t Ex. Twelve at 7; Tr. at 73–74. to each of these, I found no information relevant to 159 Id. at 70–71. 168 Gov’t Ex. Twelve at 7; Tr. at 74. this proceeding in these files. The exhibit also 160 169 includes an audio-only file identified as CCR_0001, Id. at 71; Gov’t Ex. Twelve at 19. Gov’t Ex. Twelve at 7; Tr. at 74. which neither party referred to during the hearing 161 Gov’t Ex. Twelve at 7. 170 Gov’t Ex. Twelve at 7; Tr. at 75. and which did not appear to have any information 162 Gov’t Ex. Twelve at 7; Tr. at 72. 171 Gov’t Ex. Twelve at 7; Tr. at 75. relevant to this proceeding. 163 Gov’t Ex. Twelve at 7; Tr. at 72–73. 172 Gov’t Ex. Twelve at 7; Tr. at 75. 155 Tr. at 69–70. 164 Gov’t Ex. Twelve at 7; Tr. at 73. 173 Gov’t Ex. Twelve at 7; Tr. at 75. 156 Gov’t Ex. Nine at 1–6. 165 Gov’t Ex. Twelve at 7; Tr. at 73. 174 Id. at 76. 157 Id. 166 Tr. at 73. 175 Id.

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that will then affect the entire nerve root to examination table, at which point Dr. the room with Agent Parkison, all of it some degree or another, but it is not pain that Zaidi took the seat and briefly turned seated, with the examination table is limited to just the portion of the back. We his back to Agent Parkison and between himself and Agent Parkison.194 call that instead axial pain. It has other consulted his computer monitor.185 Dr. As Dr. Severyn noted, there is no causes. That is the use of the word lumbago, Zaidi then turned to face Agent which is lumbar pain. evidence that Dr. Zaidi performed any But, putting a diagnosis of radiculitis as Parkison, and began his interview, physical examination either before or opposed to other causes, that, based on this asking about whether the Percocet had after agreeing to increase the Percocet history and the lumbar portion of the been effective and discussing his prescription.195 Indeed, the discussion examination are much more reasonable, concerns about Agent Parkison’s blood predominating this visit addressed brings to my mind the question as to the pressure, which he said was high and Agent Parkison’s high blood pressure, accuracy of that diagnosis, because I think created the risk of stroke.186 When Dr. not his pain or his treatment for pain. that an experienced physician, especially one Zaidi asked how the Percocet was There was no discussion about exercise, in the field of pain medicine, would working, Agent Parkison stated ‘‘it physical therapy, injections, alternatives recognize that this is not the presentation and worked pretty good, it worked alright; I the examination that’s compatible with a to the use of controlled substances, or just felt like I didn’t quite have enough Agent Parkison’s functional capacity. diagnosis of radiculitis. This diagnosis is 187 blatantly inaccurate.176 of it.’’ They did not, however, Dr. Severyn remarked that there was discuss whether Agent Parkison had a notation regarding home exercise as 188 Accordingly, Dr. Severyn opined that taken all of the prescribed Percocet. 196 both the treatment plan and the part of the plan of treatment. He Agent Parkison then asked Dr. Zaidi added, however, that he found nothing recommendation for this patient were ‘‘if I could get a little bit more’’ and ‘‘not justified by the presentation of this in the material that ‘‘contained any hoped ‘‘to try two in the morning and educational endeavor that would allow patient.’’ 177 two in the evening.’’ 189 Without more, Dr. Severyn expressed the same someone to conduct a home exercise Dr. Zaidi stated ‘‘Okay. So I’ll give you program.’’ 197 He explained that in order opinion regarding Dr. Zaidi’s diagnosis 190 four a day.’’ Based on this to provide a home exercise program to of lumbar radiculitis during the follow- examination, Dr. Zaidi gave Agent a patient, ‘‘there would need to be either up visit on October 4, 2012, based on Parkison a prescription for 56 Percocet verbal or oral communication. It would what he observed from the recordings of five mg tablets.191 the follow-up visit and what appears in In his transcribed notes for the include instructions as to what are the Dr. Zaidi’s written notes of that subjective examination, Dr. Zaidi wrote: physical maneuvers to be performed, encounter.178 He said Dr. Zaidi’s the frequency, the timing, and the [Agent Parkison] is stable with his lower expected response and instructions as to notation that he conducted a physical back pain at 5 on a scale of 0–10. No change examination during that visit allowing how to avoid exacerbating the in his personal, family, or social history. No 198 him to find moderate tenderness and focal weakness or numbness. No abdominal condition.’’ While this could be spasm in the paralumbar muscles (with or chest pain. His blood pressure is again accomplished by handing the patient guarding and forward flexing) was very elevated. We again discuss the potential various brochures that might explain a falsified, as was his description of a complications from such high blood pressure home exercise program for this kind of and he is to go and see his PCP today or ER lower extremity examination pain, there is nothing in the record to to have that addressed. Otherwise, no 199 establishing normal sensory and motor indicate such education took place. abdominal or chest pain at present. No Agent Parkison confirmed this, testing.179 headaches. No visual disturbances.192 The October 4, 2012 visit began with testifying that at no time during any of In his report of objective findings, Dr. Ms. Barrett 180 taking Agent Parkison’s his office visits did Dr. Zaidi provide Zaidi wrote that Agent Parkison’s ‘‘vital blood pressure and pulse oximetry,181 him with examples of exercises he signs are stable though blood pressure is and recording her findings while seated could perform to treat his back pain, nor elevated. Moderate tenderness and and using the examination table as her was there any discussion about a home spasm in paralumbar muscles with 200 desk.182 Ms. Barrett inquired of Agent exercise program. guarding in forward flexion. Lower Parkison’s current pain level, which he Despite the paucity of information extremity examination is normal to stated was three or four, with the best gathered during this second visit, Dr. sensory and motor testing. His gait is level around two and worst pain at Zaidi increased by one hundred percent normal.’’ 193 Having seen the audio- four.183 Those pain levels are recorded the number of Percocet tablets he video recording of this encounter, I find prescribed to Agent Parkison.201 in notes apparently written by Ms. no evidence that Dr. Zaidi has Barrett, indicating current pain as a According to Dr. Severyn, there was no accurately described the scope of his justification presented in the medical four, with worst pain at four and best physical examination, and consistent 184 record for doubling the amount of pain at two. At no time did Agent with Dr. Severyn’s findings, I find this Parkison indicate a pain level as high as Percocet to Agent Parkison.202 Dr. to be a falsified examination report. Severyn explained that while Agent five. By this point in the visit, Dr. Zaidi Parkison’s continued complaint of pain As Ms. Barrett finished her notes in had spent approximately two minutes in the file, Dr. Zaidi entered and Ms. should be considered, Dr. Zaidi should have considered alternatives to Barrett stood up from behind the 185 Gov’t Ex. 3b, folder Tyler UC visit, subfolder AudioVideo Recordings—10–04–12, file 102359 at 176 Id. at 77–78. 10:26:31–10:27:05. 194 Gov’t Ex. 3b, folder Tyler UC visit, subfolder 177 Id. at 79. 186 Gov’t Ex. 3b, folder Tyler UC visit, subfolder AudioVideo Recordings—10–04 12, file 102359 at 178 Id. at 80. AudioVideo Recordings—10–04 12, file 102359 at 10:26:31 to 10:28:40. 179 Gov’t Ex. Twelve at 12; Tr. at 81. 10:27:05 to 10:28:11. 195 Tr. at 80. 180 Gov’t Ex. Nine at 11. 187 Id.; Gov’t. Ex. Nine at 13. 196 Id. at 81. 181 Tr. at 232. 188 Tr. at 336. 197 Id. 182 Gov’t Ex. 3b, folder Tyler UC visit, subfolder 189 Gov’t Ex. Nine at 13. 198 Id. at 84–85. AudioVideo Recordings—10–04–12, file 102359 at 190 Id. 199 Id. at 85. 10:24:38 to 10:26:40. 191 Tr. at 310; Gov’t Ex. Fifteen at 2. 200 Id. at 350. 183 Id.; Gov’t Ex. Nine at 11. 192 Gov’t Ex. Twelve at 12. 201 Id. at 85. 184 Gov’t Ex. Twelve at 18. 193 Id. 202 Id.

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controlled substances as treatment.203 Based on this encounter, Dr. Zaidi examination occurred.221 I too saw no Dr. Severyn opined that when Dr. Zaidi made written subjective findings, stating evidence of an examination during this prescribed 56 Percocet tablets for Agent that Agent Parkison’s ‘‘lumbar pain is at visit. Parkison during this visit, he did so 5 on a scale of 0–10’’ despite the Dr. Severyn also noted that while the outside the usual course of professional notations to the contrary in the chart written record of treatment for practice.204 prepared by Ms. Barrett and despite the November 14, 2012, reports Agent According to Dr. Severyn, Agent absence of any evidence indicating Parkison reported pain at level five (on Parkison’s next visit, on November 14, Agent Parkison was reporting pain at a scale of ten), the recording and 2012, did not include an examination of that level.212 Despite the lack of transcript show that Agent Parkison the lumbar spine, nor any testing for questions (by either Ms. Barrett or Dr. reported pain at level two to three—and guarding in forward flexion, nor was Zaidi) addressing these subjects, Dr. there is no explanation to account for 222 there any sensory or motor testing of the Zaidi wrote there was ‘‘[n]o change in this difference. lower extremities.205 his personal, family, or social The Government also presented 213 testimony from DEA Diversion Having reviewed the audio-video history.’’ Despite the absence of any physical examination or questions Investigator Brinks, who was present recording of the November 14, 2012 when Agent Parkison interviewed Dr. office visit, I concur with Dr. Severyn’s presented to Agent Parkison regarding these areas, Dr. Zaidi wrote in his Zaidi at the time the DEA’s search assessment and find there was no 223 subjective findings that there were no warrant was executed. Investigator examination of Agent Parkison’s lumbar Brinks testified that Agent Parkison had spine during this visit, nor was there abdominal or chest pains, and no focal 214 the medical chart reflecting pain levels any testing for guarding in forward weakness or numbness. Consistent with what Agent Parkison higher than Agent Parkison reported to flexion, nor was there any sensory or either Dr. Zaidi or Ms. Barrett, and motor testing of the lower told Dr. Zaidi, in the Objective findings section Dr. Zaidi noted Agent Parkison’s asked Dr. Zaidi if he could explain this extremities.206 224 continued high blood pressure, adding, difference. According to Investigator Agent Parkison stated that for this ‘‘He has seen his PCP and has been Brinks, Dr. Zaidi had no response when visit, he reported a current pain level of asked to monitor it at home, and I asked presented with Agent Parkison’s two and the worst level had been a 225 him to make a follow-up again very treatment chart. three.207 In taking his history for this Dr. Severyn was asked to interpret the soon.’’ 215 Dr. Zaidi accurately reported visit, Ms. Barrett accurately recorded in exchange between Dr. Zaidi and Agent that they again discussed the potential his patient medical chart that Agent Parkison, where the latter, during his complications of hypertension.216 He Parkison reported a maximum pain visit of December 12, 2012, told Dr. continued, however, to report level of three, a minimum of two, and Zaidi that his current medication has ‘‘[m]oderate tenderness and spasm in a present level of two.208 After Ms. ‘‘been helping some at the end of the paralumbar muscles with guarding in Barrett obtained Agent Parkison’s blood day,’’ but that he had ‘‘a little bit of forward flexion. Lower extremity pressure and oximetry readings and nagging stiffness,’’ adding that one of examination is normal to sensory and recorded his responses to her questions his ‘‘buddies said something that motor testing.’’ 217 Also, despite the fact about current and recent pain levels, [OxyContin] kind of helps him.’’ 226 that Agent Parkison was seated Ms. Barrett left the room and Dr. Zaidi Without more, according to Dr. Severyn, throughout his encounter with Dr. Zaidi entered shortly thereafter.209 Dr. Zaidi this would not be a sufficient during this visit, Dr. Zaidi wrote that remained standing near the office door justification for changing a medication Agent Parkison’s ‘‘gait is normal.’’ 218 and reviewed the chart provided to him to OxyContin, but that is what Dr. Zaidi Based on these subjective and objective by Ms. Barrett, and for approximately did.227 findings, Dr. Zaidi wrote that the two minutes discussed with Agent The audio-video recording of the impression is that of lumbar radiculitis, Parkison his high blood pressure and December 12, 2012 visit confirms Dr. and issued a prescription for 56 tablets the steps he should be taking to address Severyn’s description of the sequence of Percocet five mg.219 that problem.210 At no time did Dr. leading to this change in medication. Dr. Severyn opined that Dr. Zaidi’s Zaidi place his hands on Agent Parkison For this visit, Ms. Barrett does not diagnosis of lumbar radiculitis ‘‘is a or approach him—instead, he stood by appear to have taken a history or more severe condition than what this the chart until he determined that the recorded Agent Parkison’s blood patient is voicing complaints [] of,’’ and pain medication was working and pressure, and Dr. Zaidi met with Agent ‘‘is not justified on the basis of the completed his discussion regarding the Parkison for slightly less than three entirety of the history and the physical seriousness of Agent Parkison’s elevated minutes.228 For the first minute or so, examination.’’ 220 He explained that the blood pressure.211 Dr. Zaidi did not actually look at Agent objective findings that appear in Dr. Parkison, but instead was apparently Zaidi’s written report of the November 203 reviewing his medical chart.229 While Id. at 86. 14, 2012 visit—including spasms in 204 Id. still studying the chart, Dr. Zaidi paralumbar muscles and guarding in 205 Id. at 88. inquired how Agent Parkison was 206 forward flexion—could not be reached Gov’t Ex. 3c, folder Tyler UC Visit 3, subfolder doing, and Agent Parkison responded AudioVideo—11–14 12, file 094453. Note that without a physical examination, but that Government Exhibit 3c also includes an audio-only there was no evidence that such an 221 recording, which was not discussed by the parties Id. at 90–91. and which contains no information relevant to this 222 Id. at 92. 212 matter that is not also available in the audio-video Gov’t Ex. Twelve at 11; cf. Id. at 18. 223 Id. at 618, 620. recording. 213 Id. at 11. 224 Id. at 619–20. 207 Tr. at 341. 214 Id. 225 Id. at 620. 208 Gov’t Ex. 3c, folder Tyler UC Visit 3, subfolder 215 Id. 226 Id. at 95; Gov’t Ex. Nine at 20. AudioVideo—11–14 12, file 094453 at 10:00:26 to 216 Id. 227 Tr. at 95. 10:02:25; Gov’t Ex. Twelve at 18. 217 Id. 228 Gov’t Ex. 3d, folder Tyler UC Visit, subfolder 209 Id. at 10:00:37 to 10:04:56. 218 Id. AudioVideo—12–12–12, file 132123 at 13:48:56— 210 Id. at 10:04:56 to 10:06:57. 219 Id.; Tr. at 341. 13:51:17. 211 Id. 220 Tr. at 88–89. 229 Id. at 13:48:56—13:50:18.

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that he had been experiencing some portion that the statutes in Ohio were no abdominal or chest pains, no ‘‘nagging stiffness’’ and remarked that consider as protracted prescribing.’’ 239 shortness of breath or dizziness.247 one of his ‘‘buddies’’ had suggested According to Dr. Severyn, Further, without actually conducting an 230 ‘‘Oxy kind of helps him.’’ Without a At that point, there is a much higher level examination to support these findings, pause (other than to observe that such of service reflected by documentation that Dr. Zaidi wrote in his objective findings: a change would be ‘‘a lot more dose’’ needs to take place. Some of those [include Pupils are equal and reacting to light. Skin and would be more expensive), Dr. an] evaluation of what is the current is warm and dry. Moderate diffuse Zaidi wrote a prescription for 42 ten mg employment history, what is the activity of tenderness and spasm in paralumbar muscles tablets of OxyContin.231 daily living. . . . Is the treatment plan with minimal guarding in forward flexion Dr. Zaidi then engaged Agent justified? [W]hat is the effectiveness of the and extension. Lower extremity examination 240 Parkison with questions and advice treatment plan? That is not recorded here. is normal to sensory and motor testing. His about his blood pressure (although it Dr. Severyn explained that by the gait is normal.248 appears no one recorded Agent time the protracted prescribing of During cross examination, Agent Parkison’s blood pressure for this controlled substances has begun, ‘‘the Parkison stated that after this visit, he visit).232 In his treatment notes under diagnosis needs to be substantiated by determined no additional visits were the ‘‘Subjective’’ section for the visit on the physical findings and my opinion is warranted.249 He said he had worked December 12, 2012, Dr. Zaidi wrote that that they are not, and it needs to be cases like these in the past, and in those Agent Parkison’s pain level is ‘‘5 on a substantiated by the history, and my cases the DEA stopped after the third scale of 0–10,’’ although there is nothing opinion is that it is not.’’ 241 visit.250 By the fifth visit with Dr. Zaidi, in the medical chart nor the recording Because Dr. Zaidi had been treating Agent Parkison ‘‘felt it was pretty clear that supports this finding.233 Further, Agent Parkison for more than twelve that I had been issued prescriptions Dr. Zaidi wrote that Agent Parkison ‘‘is weeks by January 2013, ‘‘[a]n entirely other than for a legitimate medical not tolerating Percocet, which is lasting elevated level of service is called for,’’ purpose and didn’t feel that I needed to only a couple of hours and we are going which was not evidenced in either the continue to go’’ back for additional to change that to OxyContin 10 mg three medical chart or the recordings of the treatment.251 He said by this fifth visit, times a day.’’ 234 There was, however, office visits from January 2013 he had seen that Dr. Zaidi would not nothing in either the recording or the forward.242 question him when he asked for more patient medical records that indicates In reviewing the audio-video medication and would not check to see the Percocet was lasting only a couple recording of the January 9, 2013 visit, I if there was something that was causing of hours nor that Agent Parkison was found no examination took place other him to be in more pain.252 not tolerating Percocet—only that he than the taking of Agent Parkison’s According to Dr. Severyn, Dr. Zaidi to had some ‘‘nagging stiffness’’ and a blood pressure and oxygen levels by Ms. this point had failed to make an ‘‘buddy’’ said OxyContin helped.235 Barrett.243 Dr. Zaidi’s report of Agent adequate assessment of Agent Parkison’ Dr. Severyn said that requesting Parkison’s subjective symptoms functional status, or of his activities of OxyContin under these circumstances indicates ‘‘[h]e is doing better with daily living.253 Further, and as was the ‘‘raises in my mind, as it does in that of OxyContin, but it is not strong enough case in the three prior office visits, my associates and colleagues, a question and I am going to increase OxyContin to while Dr. Zaidi indicates a plan of of why is this patient asking for a 15 mg three times a day.’’ 244 Apparently treatment that includes a ‘‘home specific medication by name, instead of this was based entirely on Agent exercise program,’’ 254 there was no relying on my expertise to introduce a Parkison stating, ‘‘I was wondering if I discussion of any home exercises during specific medication....’’236 He said could get maybe just a little bit the office visit, nor is there any evidence that ‘‘these are red flags that I’ve heard stronger’’ notwithstanding that he that written details of such a program in . . . national medical conferences for reported to Ms. Barrett reductions in his were ever provided to Agent Parkison at a decade or more.’’ 237 pain level—that at its worst the pain any visit. Dr. Severyn next explained there are was at level two.245 Further, despite Dr. Severyn also noted that when a more rigorous standards that apply in there being no discussion of Agent patient reports ‘‘stiffness’’ in the mid- Ohio when using controlled substances Parkison’s personal, family, or social back, as Agent Parkison did during the to treat pain that no longer can be history, Dr. Zaidi reported no changes in visit on January 9, 2013,255 this is described as acute but is instead chronic those histories.246 Similarly, significant ‘‘because if a patient is or intractable.238 After reviewing patient notwithstanding the absence of any describing stiffness as opposed to pain, treatment records for treatment during physical examination, Dr. Zaidi wrote then whatever treatment plan has the first twelve weeks, Dr. Severyn that for the subjective examination there brought that patient to that stiffness . . . stated that by January 2013, ‘‘the [is] a medical success. That’s quite good. medical care is entering into that 239 Id. at 100. That sounds like improvement over 240 Id. time.... [I]t’s an indication that this 241 Id. at 100–01. 230 Id. at 13:49:10—13:50:00; Gov’t Ex. Nine at 20. patient may be getting better, and 242 Id. at 101. 231 Id. at 13:49:00—13:50:00; Gov’t Ex. Nine at 20; probably is.’’ 256 Stiffness and pain are, 243 Gov’t Ex. 3e at 14:01:29 to 14:02:21. Note that Tr. at 313. in Government Exhibit 3e at folder labeled Audio in Dr. Severyn’s view, dissimilar, in that 232 Gov’t Ex. 3d, folder Tyler UC Visit, subfolder 01–09–13 contains a file named 01–09–13, appears ‘‘a patient who is complaining of AudioVideo—12–12–12, file 132123 at 13:50:00– to contain an audio-only recording of Agent 13:50:46; see also Gov’t Ex. Twelve at 18 (chart Parkison’s January 13, 2013 office visit. As neither 247 Id. notations indicating blood pressure readings during party referred to this recording it has not been office visits on October 4, 2012, November 14, 2012, 248 Id. reviewed here. Similarly, Government Exhibit 3e in 249 and January 9, 2013, but not for December 12, folder AudioVideo 01–09–13 contains a file named Tr. at 465–66. 250 2012). Thumbs, which was not referred to by either party Id. at 466. 233 Gov’t Ex. Twelve at 10. and which I was not able to access. Accordingly, 251 Id. 234 Id. it has not been reviewed here. 252 Id. 235 Gov’t Ex. Nine at 20. 244 Gov’t Ex. Twelve at 9. 253 Id. at 102–03. 236 Tr. at 96. 245 Gov’t Ex. 3e at 14:05:22 to 14:05:57; Gov’t Ex. 254 Gov’t Ex. Twelve at 9–12. 237 Id. Nine at 23–24. 255 Id. 238 Id. at 100–01. 246 Gov’t Ex. Twelve at 9. 256 Tr. at 108–09.

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stiffness is a patient for whom pain has largely diverted and abused medication, on a protracted basis.275 He added, been well-controlled. The etiology and and a patient asking for that medicine however, that Ohio law does not require cause appears to be in regression or . . . by name . . . should and would testing at every encounter, so he would remission and their response to arise suspicion in the mind of a not opine that Dr. Zaidi should have treatment is quite good.’’ 257 When prescribing physician.’’ 266 Further, conducted a urine screen each time presented with a patient who complains during the fifth visit, when Agent these patients visited the office.276 of stiffness but also indicates pain at a Parkison asked for an increase in Further, Dr. Severyn noted that by level four on a ten point scale, Dr. OxyContin, this too would be seeing his patients at least once a Severyn stated that a physician can considered a red flag, given that there month, Dr. Zaidi complied with the reconcile this by ‘‘just asking the patient was no physical examination conducted standard of care in frequency of patient to be a little more clear’’ in response to at that visit, and given that it appeared visits, agreeing during cross the physician’s questions.258 the existing treatment plan was examination that this practice is another Such a complaint would not justify ‘‘achieving what it had meant to way to help protect against misuse, prescribing controlled substances in the achieve.’’ 267 Dr. Severyn found no diversion, or addiction.277 manner shown in the records for Agent evidence, however, that Dr. Zaidi tried Regarding a patient’s decision not to Parkison, according to Dr. Severyn, to resolve any of these red flags.268 seek treatment (such as a recommended ‘‘because there are so many less risky When asked how a physician should epidural injection) or diagnostic alternatives that can be offered, respond to a patient who sees an measures (such as an MRI), Dr. Severyn including muscle relaxants that can be advertisement for a particular drug, Dr. was asked if he recalled whether the very helpful here, and other approaches Severyn stated that if the drug was a patient attributed the decision to cost or to care.’’ 259 Dr. Severyn found, controlled substance, he would an inability to pay.278 He said he did however, no evidence that these ‘‘incorporate that into the remainder of recall discussions about patients alternatives were considered.260 the medical decision-making process’’ wishing to await the availability of In Dr. Severyn’s opinion, Dr. Zaidi’s although this did not mean the incident insurance.279 He noted, however, that ‘‘I controlled substance prescriptions for would necessarily be noted in the also see in the record before me, receipts Agent Parkison were based on a patient’s medical record.269 He added, for medical encounters of $300 cash on diagnosis that is ‘‘completely however, that in none of the three a frequent basis.’’ 280 When he stated he inaccurate’’ and ‘‘focuses only on undercover cases did it appear that the thought these were on a monthly basis, controlled substances and not on the patient told Dr. Zaidi he wanted a he initially indicated that there were at several other alternative approaches to particular drug because he had seen the least two such payments made by Agent care [including] physical therapy, non- drug advertised.270 Parkison.281 The record, however, does controlled substance medication, [and] When asked on cross examination not support this, and instead indicates the medications in several different about things a physician must do to the $300 cash payment was made only classes.’’ 261 He also noted that by resolve red flags associated with at the initial visit, and $95 was charged January 2013, there was no proper potential diversion, misuse, or for all subsequent visits.282 After this informed consent obtained by Dr. Zaidi addiction, Dr. Severyn stated that first discrepancy was brought to his for this patient.262 Dr. Severyn the physician must observe the patient attention, Dr. Severyn was asked acknowledged the form Agent Parkison over time, note the ‘‘maturation’’ of whether he believed these patients signed on September 11, 2012 (at the what is observed, and when could afford MRIs or injections if these start of his treatment) states, ‘‘I consent encountering more than one ‘‘element of were indicated, and he stated he did not at this time for treatment with discontinuity’’ more than just agree that the patients could have medications and therapeutic observation is called for.271 ‘‘The afforded those procedures.283 procedures.’’ 263 According to Dr. ultimate ‘to-do’ always is to say, ‘You Dr. Severyn stated that an MRI is Severyn, however, this does not know, this is not a treatment that I am helpful in the context of pain medicine, constitute informed consent, as it ‘‘does going to continue for this patient.’ ‘‘when it answers, in the mind of the not sufficiently describe the risks that That’s one approach. Another physician . . . what is the cause of this can go along with using a controlled alternative is other medication, physical patient’s complaints, the etiology of the substance on a regular basis,’’ including therapy, [and] referrals, those are physical findings and the implication ‘‘delayed breathing, slowed breathing, important.’’ 272 and impact of learning that information risk of overdose, risk of drug Dr. Severyn agreed, on cross upon the recommendation to be made to withdrawal, risk of diversion of examination, that there may have been the patient and the treatment plan to be medications, risk of becoming addicted, instances where patients have deceived put into effect.’’ 284 When asked on cross risk of being a victim of theft and home him without his knowledge.273 He examination whether it was appropriate break-in, and the risk actually for the recalled one such instance where he for Dr. Zaidi to advise Agent Parkison to worsening of pain over time ....’’264 discovered the deception only after have an MRI ‘‘because of the vague Dr. Severyn noted that by his fourth evaluating the results of a urine symptom that he has in his lower visit, Agent Parkison asked for screen—a test he requires at the initial back,’’ 285 Dr. Severyn said no, and OxyContin by name, something Dr. encounter (as does Dr. Zaidi 274), and agreed that the fact that no MRI was Severyn regarded as a red flag.265 He thereafter at ‘‘every encounter’’ for explained that ‘‘OxyContin has been a patients receiving controlled substances 275 Id. at 191–92. 276 Id. at 194. 257 Id. at 259. 266 Id. 277 Id. at 196. 258 Id. at 261. 267 Id. 278 Id. at 187. 259 Id. at 109. 268 Id. at 114. 279 Id. 260 Id. at 109–10. 269 Id. at 199. 280 Id. 261 Id. at 103. 270 Id. at 280. 281 Id. 262 Id. at 104–05. 271 Id. at 173–74. 282 Id. at 187–88; Gov’t Ex. Sixteen. 263 Id. at 104–05; Gov’t Ex. Twelve at 25. 272 Id. at 174–75. 283 Tr. at 188. 264 Tr. at 105–06. 273 Id. at 191. 284 Id. at 240. 265 Id. at 113. 274 Id. at 193. 285 Gov’t Ex. 12 at 8.

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ever performed did not breach the United States Army, has completed controlled substances.304 According to standard of care.286 training at the Ohio Police Officer Detective Leonard, while Dr. Zaidi did On cross examination, Dr. Severyn Training Academy, and received conduct a physical examination during agreed that one appropriate means of training in pharmaceutical diversion the first office visit, he conducted no responding to red flags in the context of through the Ohio Board of Pharmacy.292 physical examinations during any of the prescribing pain medication is to use Detective Leonard participated in the subsequent visits.305 urine drug screens, and he surveillance of Dr. Zaidi’s medical office As was the case with his review of acknowledged that Dr. Zaidi used these and was a patient in an undercover Agent Parkison’s treatment, Dr. Severyn screens as part of his prescription capacity, under the name Patrick J. reviewed the medical charts, transcripts, practice.287 Tock.293 In his role as a patient, and recordings 306 relating to Dr. Zaidi’s Dr. Severyn next explained why the Detective Leonard attended six office treatment of Officer Leonard during six inaccuracies found in Dr. Zaidi’s visits with Dr. Zaidi, and in each visit visits to that office.307 And as was the medical records of Agent Parkison’s received prescriptions for controlled case with the records of treatment of treatment are important in the review of substances.294 Each of these visits were Agent Parkison, Dr. Severyn noted Dr. Zaidi’s prescription practice: surreptitiously recorded, and both the material differences between what There is inaccuracy and a listing of a more recordings and the transcriptions of the appears in Officer Leonard’s written severe level of pain than what the patient is relevant portions of those recordings are medical chart and what actually actually voicing during the encounter with included in our record.295 He agreed on occurred during Dr. Zaidi’s treatment of staff or with the physician. The diagnosis, the cross examination that in his the patient. impression that is listed here, the most undercover capacity, he was engaged in In the ‘‘History and Physical impressive and important of them, with misleading Dr. Zaidi and his staff during Examination’’ for the visit on October regards to guiding the patient through 23, 2012, Dr. Zaidi reported the patient’s these visits.296 He denied, however, that treatment, would be the lumbar radiculitis, ‘‘pupils are equal and reacting to there was ‘‘any trickery involved. We and that is not justified or substantiated by light.’’ 308 Dr. Severyn stated that an presented a certain set of facts and either the history or the physical examination of pupil reaction to light examination. Finally, the approach to waited to see if Dr. Zaidi would write ‘‘was not part of the physical treatment that relies on only a controlled prescriptions.’’ 297 examination that I saw undertaken.’’ 309 substance and does not include many of the In his role as Patrick Tock, Detective other approaches, such as non-steroidal anti- He explained that ‘‘[r]eactive to light’’ Leonard reported that he had stiffness in means ‘‘that the lighting characteristics inflammatory, neuromodulator, tricyclic 298 medications [and] physical therapy. Those his lower back. In his initial in the room changed significantly are absent. The home exercise program, I interview with Christy Barrett, Detective enough that an evaluation of that could found no evidence that that is being Leonard reported pain levels of between be done.’’ 310 This could be done either provided. three and four on a ten-point scale, by shining a light directly into each of 299 I found, to a large degree, that if I were to denying any pain in his legs. He also the patient’s eyes, or directing the have reviewed only the medical record, as it denied ever being treated for this patient’s head to a window and back, was presented here, I would have arrived at condition, and denied ever having an a different opinion than I am able to, having ‘‘to see if each pupil independently and MRI or x-ray with respect to the to some degree in a coordinated fashion now had the ability to see a transcript and condition.300 At the conclusion of the watch an audio/visual recording of what would react to light.’’ 311 Dr. Severyn actually occurred during that encounter.288 initial office visit, he obtained from Dr. said he did not see such an examination Zaidi a prescription for 42 tablets of take place in any of Officer Leonard’s For these reasons, Dr. Severyn opined 301 Percocet five mg. According to office visits where video recordings that Dr. Zaidi’s prescriptions of Detective Leonard, at no time did Dr. 312 controlled substances for Agent were part of our record. Zaidi suggest any treatment for his I note that of the recordings included Parkison ‘‘were well outside the usual condition other than controlled in Government Exhibit Four, course of professional practice substances, nor did Dr. Zaidi suggest audiovisual recordings were available ....’’289 physical therapy, exercise, or any other only for the examinations of Officer Dr. Zaidi’s Treatment of Officer Patrick non-medication treatment.302 He said Leonard (Under the Name Patrick Dr. Zaidi did recommend that he obtain 304 Id. at 573; Gov’t Ex. Thirteen. Tock) an MRI, providing to Detective Leonard 305 Tr. at 576–83. the name of a provider whose charges 306 The recordings in evidence include Patrick James Leonard has been for this service were reduced for Government Exhibits 4a through 4f. Government employed at the Akron (Ohio) Police persons, like Detective Leonard, who Exhibit 4a contains two folders, both having to do Department for about 20 years, the last with Officer Leonard’s visit to Dr. Zaidi’s office on lacked health insurance.303 Despite this sixteen of which he has been a detective October 23, 2012. One folder, labeled Audio 10–23– recommendation, Detective Leonard 13, consists of one file, identified as CCR_0001. The in the narcotics diversion returned to Dr. Zaidi’s office five more other folder, identified as AudioVideo 10–23–12, department.290 In addition, for the past has seven files. Four files, identified as 125939, times without obtaining an MRI, and on 130541, 130611, and 132851, contain no two years Detective Leonard has been each occasion Dr. Zaidi prescribed him assigned to the DEA as a task force information material to this administrative matter. The files identified as 130617 and 135848 depict officer, serving in an undercover 292 Id. at 555. preliminary stages of an office visit on October 23, capacity in the investigation of 2012, but do not include Dr. Zaidi’s examination of 293 Id. at 555–56. Officer Leonard (which apparently was captured physicians and others suspected of 294 Id. at 556–64. 291 only by audio recording). It also contains a file illicit drug transactions. He was 295 Id. identified as Thumbs, which I was unable to access trained as a military police officer in the 296 Id. at 588. and which has not been referred to by either party, 297 Id. at 588–89. and thus is not part of my review of this record. 286 Tr. at 234. 298 Id. at 567. 307 Tr. at 115. 287 Id. at 175. 299 Id. at 568–69. 308 Gov’t Ex. Thirteen at 9. 288 Id. at 107–08. 300 Id. at 571. 309 Tr. at 115–16. 289 Id. at 104. 301 Id. 310 Id. at 126. 290 Id. at 553. 302 Id. at 572. 311 Id. 291 Id. at 554–55. 303 Id. at 572–73. 312 Id. at 126–27.

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Leonard conducted on December 13, nerve going down into the lower [which is] present in Percocet and was 2012, and February 21, 2013. Although extremity.’’ 320 As was the case with Dr. present in OxyContin.’’ 328 Detective Dr. Zaidi reported the results of light Zaidi’s diagnosis of Agent Parkison, Dr. Leonard expressed a similar concern reaction examinations in those two Severyn said not only is the diagnosis regarding Opana, testifying that ‘‘[i]t’s a reports and in the examinations of radiculitis for Officer Leonard highly abused narcotic. We’re having a conducted on October 23, 2012; inaccurate, ‘‘it’s blatantly problem with it on the street. High November 15, 2012; January 10, 2013; inaccurate.’’ 321 resale.’’ 329 According to Dr. Severyn, and March 21, 2013,313 there were no In addition to concerns regarding Dr. there is, however, no evidence that Dr. video recordings of these four Zaidi’s written impressions, Dr. Severyn Zaidi either recognized or sought to examinations.314 remarked that the patient presented red resolve these red flags.330 After For the examinations conducted on flags that went unresolved by Dr. Zaidi. confirming during cross examination December 13, 2012 and February 21, One such red flag arose when the that Dr. Zaidi ended up not prescribing 2013, it is possible to confirm (and I do patient was unable to produce Opana, Dr. Severyn said he believed this confirm) that no examination took place identification after the initial visit.322 to be the appropriate decision.331 that would provide Dr. Zaidi with The patient’s past drug use also raised Dr. Severyn noted that at the initial objective evidence to support these a red flag: ‘‘It’s concerning here that the visit, when Officer Leonard produced exam findings,315 but I do not resolve patient, already describing to the only a photocopy of his license (under whether examinations took place on physician that the patient has taken the pretense that the original had been October 23, 2012; November 15, 2012; some pain medication from his wife, seized recently by the police), there was or January 10 or March 21, 2013.316 and that it has helped, but that the some mention that he would need to I find, however, that Dr. Zaidi’s patient is not able to describe the name produce a license at the next visit,332 determination to remain silent in the of the medication that his wife is taking but there is no evidence that anyone face of testimony tending to show no and that his wife provided to him.’’ 323 from Dr. Zaidi’s office followed through 333 examinations took place gives rise to a According to Dr. Severyn, after Officer on this at any subsequent office visit. negative inference, one that supports a Leonard admitted to using his wife’s Considering the red flags present here, finding that his examinations on pain medication, Dr. Zaidi should have Dr. Severyn stated that it ‘‘did not November 15, 2012; January 10, 2013; obtained more information.324 Calling it appear that there was significant or and March 21, 2013, were substantially ‘‘an element of medical necessity,’’ Dr. sufficient attention to the known similar to those shown in the videos of Severyn opined that Dr. Zaidi should indications of abuse or diversion that examinations on December 13, 2012 and have attempted to learn when Officer we’ve been referring to here as red 334 February 21, 2013, and do not support Leonard actually used his wife’s flags.’’ the findings he reported in these Beyond these red flags, Dr. Severyn medication.325 medical records. It is unclear, however, opined that even under a diagnosis of Dr. Severyn explained that while Dr. what examinations, if any, took place on lumbar radiculitis, ‘‘[t]his patient has Zaidi did use urine drug screens as part the first visit, on October 23, 2012.317 not had benefits of a more conservative of his prescription practice, the screen Dr. Severyn noted that Officer plan of treatment. Modification of would be useful here if Dr. Zaidi could Leonard reported a dull ache affecting activities, non-controlled substances, determine when Officer Leonard the low back during his initial visit, at physical therapy are the big three, the actually took his wife’s medication. ‘‘I level three to four on a ten-point scale, main important components of think that what is so missing [about] without weakness and without treatment that have to, over a period of this red flag, about receiving medication numbness going into the legs.318 In Dr. several weeks, not result in an from the wife, is we all have no idea Severyn’s opinion, this history would improvement’’ before resorting to support a diagnosis of lumbago, but when that event would have been said controlled substances as treatment for does not support Dr. Zaidi’s diagnosis of to have occurred. But if it would have pain.335 He noted further that while the radiculitis.319 As noted above, Dr. been said to have occurred the past day plan of treatment included Severyn explained that radiculitis calls or so, its absence on the urine screen encouragement for the patient to get an for ‘‘pain arising in the lumbar spine would have been an important red flag. MRI done of the lumbar spine,336 in Dr. and clearly following the pathway of a Its presence would be just as Severyn’s view a pain management 326 important.’’ specialist ‘‘would appreciate that an 313 Gov’t Ex. Thirteen at 9, 12–16. Also of concern with this patient, MRI is not indicated at this time, with 314 See Gov’t Ex. Four. according to Dr. Severyn, was the this patient and with this set of 315 See Gov’t Ex. 4c, folder Leonard UC3, patient’s request after the initial visit for conditions, even were those conditions, AudioVideo 12–13–12, file 083000 at 8:38:52— an increase in oxycodone; and on the as shown in the medical record, 8:40:31; Gov’t Ex. 4e, folder AudioVideo 02–21–13, fourth visit the patient’s request for file 2013–02–21 at 8:58:27—9:00:19. accurate.’’ 337 He explained that even if 327 316 See Government Exhibits 4a, 4b, and 4d. In Opana. This latter request was ‘‘a Government Exhibit 4b, when I attempted to open huge flag,’’ because, according to Dr. 328 Id. the file AudioVideo 142205 in the AudioVideo Severyn, Opana ‘‘is a drug that is 329 Id. at 578. Detective Leonard testified that folder, the file would not play, and instead a becoming more commonly diverted. It is Opana 40 mg costs between $4 and $5 per tablet message appeared stating ‘‘Windows Media Player because Opana is twice as strong, and sells for $50 per tablet on the street, whereas cannot play the file. The player might not support 5/325 mg Percocet costs $.50 per tablet and sells for the file type or might not support the codec that milligram per milligram, in its effects on between $8 and $10 per tablet. Tr. at 615. was used to compress the file.’’ Accordingly, the the mind, as is the drug Oxycodone, 330 Id. at 135. only recording of this visit was contained in the 331 audio-only file identified as CCR_0005, found in the Id. at 200–01. 320 Tr. at 117. 332 folder labeled Audio 11–15–12. In Gov’t Ex. 4d, the See Gov’t Ex. 4a at folder AudioVideo 10–23– 321 only file provided by the Government was an audio- Id. at 118. 12, file 130617 at 13:17:13 to 13:17:27; Gov’t Ex. only recording labeled 1–10–13 in a folder labeled 322 Id. at 131. Ten at 3. Audio 01–10–13. 323 Id. at 117. 333 Tr. at 135. 317 See Gov’t Ex. 4a, folder Audio 10–23–12, file 324 Id. at 176. 334 Id. at 135–36. CCR_0001 at 49:44—56:00. 325 Id. 335 Id. at 118. 318 Tr. at 117. 326 Tr. at 177. 336 Id.; Gov’t Ex. Thirteen at 9. 319 Id.; Gov’t Ex. Thirteen at 9. 327 Id. at 134. 337 Tr. at 118–19.

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an MRI was taken and indicated a Zaidi.348 He agreed, however, that Dr. Thus, while a physician may treat a significant abnormality associated with Zaidi could take into account the person with acute pain without lumbar pain, patient’s representations of not having inquiring into social history, work [T]he treatment of that abnormality insurance or funds sufficient for such employment, activities of daily living, probably would not have taken place because testing, when evaluating the patient’s and the like, while still meeting the it would not be medically necessary. What is noncompliance with the MRI order.349 standard of care, such inquiries are medically necessary is [based on] what does He also agreed that a similar order was required when it becomes clear to the the patient have? How is this affecting written during Dr. Zaidi’s treatment of physician that the pain is chronic,357 quality of life, employment, social history? Agent Parkison.350 rather than acute. Once it appears the How is the patient responding to the least At the same time, however, Dr. risky forms of treatment? 338 pain is chronic or intractable, the Severyn thought that these patients had physician is required to determine what Dr. Severyn stated that he reviewed paid $300 for their initial office visits needs to be done differently in treating each of the recordings of Officer and were paying $95 for each the patient for pain under Ohio’s Leonard’s follow-up visits with Dr. subsequent visit.351 When asked administrative rules.358 Zaidi, and saw no evidence of any whether there was anything suspicious Dr. Severyn also noted the absence of subsequent physical examinations, about a patient’s willingness to pay that raising doubts about the validity of the information regarding the patient’s kind of money for specific drugs while 359 diagnoses appearing in the reports of refusing to pay $200 for a cortisone shot functional capacities. After noting the those visits.339 Specifically, he saw no or $350 for an MRI, Dr. Severyn stated, patient indicated employment as a evidence of an examination that would ‘‘I believe that is an indication of delivery driver, Dr. Severyn said he support a finding that the patient’s possible activity, intent or use or found no evidence that Dr. Zaidi ever pupils were ‘‘equal and reacting to misuse, that’s not in keeping with what inquired about the degree to which the light’’ 340 because there was no the intended role of that medication is, patient’s pain symptoms interfered with examination of the pupils with light; 341 in the doctor’s treatment plan’’ and is this employment or inquired about there was no touching of the patient, ‘‘very suspicious and it is a red flag.’’ 352 whether the pain interfered with daily and ‘‘one can only identify and find Dr. Severyn noted that as was the case activities, family life, or social tenderness by touching the patient;’’ 342 with his treatment of Agent Parkison, activities.360 there was no evidence of Dr. Zaidi when Officer Leonard’s treatment Dr. Severyn expressed the opinion touching Officer Leonard to examine the extended beyond twelve consecutive that in prescribing controlled substances lumbar spine; 343 there was no weeks, treatment is considered to be on for Officer Leonard, Dr. Zaidi did so examination that would support a a protracted basis.353 The plan of without having a legitimate medical finding of ‘‘moderate diffuse tenderness treatment here, however, did not purpose, because the patient’s medical and spasm in paralumbar muscles with consider alternative and less risky complaints did not justify the use of a minimal guarding in forward flexion medications than controlled substances; controlled substance.361 He stated that and extension;’’ and there was no did not include physical therapy; and based on what he observed in the examination that would support a while the written plan ‘‘includes a recordings of these office visits, ‘‘the finding regarding motor and sensory notation for [a] home exercise program prescribing that took place here was not functions of the lower extremity,344 as . . . the rest of the evidence does not prescribing for a legitimate medical such testing ‘‘did not occur.’’ 345 provide a mechanism whereby that was purpose and was not in the usual course Considering these inconsistencies, Dr. ever put into place.’’ 354 of professional practice.’’ 362 Severyn opined that ‘‘when a medical Dr. Severyn explained the record displays the performance of significance of a course of pain Dr. Zaidi’s Treatment of Officer Shaun actions that did not occur, the entire medication that extends beyond twelve Moses (Under the Name Shaun validity of the record becomes subject to weeks. Under Ohio Administrative Code Chandler) extreme doubt and questioning.’’ 346 section 4731–21–02, when it appears During cross examination, when it that a patient will be treated with pain Shaun Moses is a Special Agent with the DEA, working out of the DEA’s was noted that Dr. Zaidi issued an order medication for twelve weeks or longer, 363 prescribing an MRI, Dr. Severyn stated ‘‘there better be quite a bit of Cleveland, Ohio office. As a Special that the MRI ‘‘became part of the substantiation behind it, and [the] Agent, he enforces provisions of the medical treatment plan, and the Controlled Substances Act, and has intensity of service needs to justify the 364 patient’s lack of follow up of the continued use of that medication.’’ 355 done so for more than eight years. He medical treatment plan is yet another Even though a physician will not always has a bachelor’s degree in political red flag.’’ 347 Thus, while he opined that know at the start of treatment that a science from Hiram College, and has an MRI for this patient was not patient’s treatment will last twelve completed the sixteen-week training medically indicated by the patient’s weeks or longer, the regulation provides course at the DEA Academy in 365 history, the physical examination, and that if somebody needs controlled Quantico, Virginia. On cross the duration of the problem, the substances that long, greater examination, he agreed that included in patient’s failure to follow the order documentation is needed than would be his training for undercover work were needed to be taken into account by Dr. the case when a person is treated for ‘‘block[s] of instruction’’ to help him acute pain on a short-term basis.356 deceive the target of the 338 Id. at 120–21. 339 Id. at 121. 348 Id. at 266–67. 357 Id. at 287–88. 340 Id. 349 Id. at 267. 358 Id. at 288. 341 Id. at 122. 350 Id. at 271. 359 Id. at 129–30. 342 Id. 351 Id. at 277. 360 Id. 343 Id. 352 Id. at 278. 361 Id. at 128. 344 Gov’t Ex. Thirteen at 9. 353 Id. at 125. 362 Id. 345 Tr. at 122, 127. 354 Id. at 125–26. 363 Id. at 473. 346 Id. at 121. 355 Id. at 286. 364 Id. at 474. 347 Id. at 270. 356 Id. at 286–87. 365 Id. at 475.

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investigation.366 He said the goal of the and examination, Dr. Zaidi suggested muscles’’ yet there was no touching of undercover work was to see Dr. Zaidi Agent Moses get a cortisone shot, which the area superficial to the cervical spine and after ‘‘giving as little information as Agent Moses deferred, indicating ‘‘I’ll and no testing of the paraspinal lumbar possible and being as vague as possible, get back to you.’’ 379 In response, Dr. muscles.388 Dr. Zaidi wrote that the see what he would prescribe you.’’ 367 Zaidi prescribed Vicoprofen, a ‘‘upper extremity examination is normal Agent Moses visited Dr. Zaidi for controlled substance that is a mixture of to sensory and motor testing with treatment on five occasions, under the Vicodin and ibuprofen.380 normal range of motion at the upper name Shaun Chandler.368 He identified When asked on cross examination extremity joints,’’ but testing of those the recordings made during these visits, whether a physician acting within the nerves did not take place.389 Similarly, and the transcripts made based on these standard of care must decline to provide although Dr. Zaidi did palpate the knee 369 recordings. In each of these visits, medical services to a patient who lacks area, he reported ‘‘lower extremity Agent Moses obtained prescriptions for records of prior medical treatment, Dr. examination otherwise is normal to 370 controlled substances from Dr. Zaidi. Severyn said if there are no prior sensory and motor testing,’’ but did not Agent Moses described the physical records then it would not be a breach of perform a lower extremity sensory and examination performed by Dr. Zaidi in the standard of care, nor would it be motor examination.390 the first visit. Dr. Zaidi directed Agent unusual, as ‘‘[t]here will always be a Moses to roll up his left pant leg, at case in which a physician is seeing a Having reviewed the video recording, which point Dr. Zaidi ‘‘squeezed my patient for the patient’s first event of a including the time Agent Moses spent knee a little bit,’’ then directed Agent condition associated with pain.’’ 381 He with the medical assistant Christy Moses to walk on his heels and toes, also opined that physicians ‘‘are Barrett and the time spent with Dr. bend over to touch his toes, straighten reasonably entitled to approach a Zaidi, I find Dr. Severyn’s observations his leg while seated, and respond to patient as being truthful and to be supported by substantial evidence. questions about the presence of back representing true facts, as they are It is clear that Dr. Zaidi instructed Agent pain.371 He told Dr. Zaidi he worked for described.’’ 382 Moses to raise his left pant leg, and that the Village of Gates Mills, doing ‘‘[a] lot Central to Dr. Severyn’s analysis were he palpated the patellar area of the left of manual labor type stuff.’’ 372 reports of examination contained in the leg; and we see Agent Moses extending According to Agent Moses, at no time typed notes appearing in the ‘‘History his leg and, when standing, rise on his did Dr. Zaidi examine his neck, shine a and Physical Examination’’ report found toes and then on his heels.391 This, light into either eye, or touch his in the patient’s medical records.383 Dr. however, is the extent of the physical abdomen.373 Agent Moses said this was Severyn compared what appears in this examination. the only visit during which Dr. Zaidi written report of examination with what While there is evidence that Dr. Zaidi conducted any kind of physical he saw in the video recording of the tested Agent Moses’ gait, finding good 374 examination. office visit, and reported inaccuracies in balance and coordination, and that As was the case with his review of Dr. the report. Agent Moses performed normal heel Zaidi’s treatment of Agent Parkison and Included in these inaccuracies were and toe walking, Dr. Zaidi also Detective Leonard, Dr. Severyn notations that the patient was ‘‘oriented indicated finding a ‘‘soft and reviewed the recordings, transcripts, times three,’’ which Dr. Severyn nontender’’ abdomen, but never and medical records regarding Dr. explained meant that the patient was palpated the abdomen.392 Dr. Zaidi Zaidi’s treatment of Agent Moses as oriented as to person, place and time.384 indicated ‘‘good air entry bilaterally in Shaun Chandler.375 And, as was the Dr. Severyn stated these were not both longs with normal S1 and S2 heart case in the other two undercover agents’ formally evaluated during the medical records, Dr. Severyn found examination conducted by Dr. Zaidi.385 sounds,’’ but such testing, according to inaccuracies in the written reports of He said blood pressure was formally Dr. Severyn, requires the use of a stethoscope, which did not take treatment, when compared with what he evaluated, but the pupil reaction to light 393 observed when watching the video test was not performed, nor was there place. recordings of treatment.376 any examination of the oral mucosa nor When stating the impressions formed During the visit on January 29, 2013, the cranial nerves—all of which were from this examination, Dr. Zaidi Agent Moses presented as having left reported as being performed in Dr. indicated ‘‘knee pain, limb pain, and knee stiffness, which he indicated to Dr. Zaidi’s written report.386 possible early osteoarthritis of knee.’’ 394 Zaidi was dull and aching, and which As Dr. Severyn noted, Dr. Zaidi’s According to Dr. Severyn, given the he said was at worst four on a ten point written report of the physical examination and history present, the scale, and was presently two on that examination states the patient’s thyroid impression of possible early same scale.377 He told Dr. Zaidi he had gland is not enlarged and there is no no prior trauma to the knee, and thus far cervical or axillary lymphadenopathy, 388 Tr. at 141; Gov’t Ex. Fourteen at 7; Gov’t Ex. treated it with ‘‘a couple of aspirin’’ but but at no time did Dr. Zaidi palpate the 5A, folder AudioVideo 01–29–13, file 2013–01–29 nothing more.378 Based on this history lymph or thyroid glands.387 Dr. Zaidi at 13:41:55 to 13:48:21. wrote that there was ‘‘no tenderness in 389 Tr. at 141; Gov’t Ex. Fourteen at 7; Gov’t Ex. 5A, folder AudioVideo 01–29–13, file 2013–01–29 366 Id. at 513. his cervical, parathoracic, or paralumbar at 13:42:48 to 13:48:21. 367 Id. at 514. 390 Tr. at 142; Gov’t Ex. Fourteen at 7; Gov’t Ex. 368 Id. at 475–76. 379 Tr. at 494. 5A, folder AudioVideo 01–29–13, file 2013–01–29 369 Id. at 476–82. 380 Id. at 13:42:48 to 13:48:21. 370 Id. at 482–85. 381 Id. at 264–65. 391 Gov’t Ex. 5A, folder AudioVideo 01–29–13, 371 Id. at 491–92. 382 Id. at 265. file 2013–01–29 at 13:42:48 to 13:48:21. 372 Id. at 492. 383 Gov’t Ex. Fourteen at 7–8. 392 Tr. at 142; Gov’t Ex. Fourteen at 7; Gov’t Ex. 373 Id. at 495. 384 Tr. at 140. 5A, folder AudioVideo 01–29–13, file 2013–01–29 374 at 13:42:48 to 13:48:21. Id. at 498. 385 Id. 375 393 Tr. at 142–43; Gov’t Ex. Fourteen at 7; Gov’t Id. at 140. 386 Id. at 140–41; Gov’t Ex. Fourteen at 7–8. Ex. 5A, folder AudioVideo 01–29–13, file 2013–01– 376 Id. 387 Tr. at 141; Gov’t Ex. Fourteen at 7; Gov’t Ex. 29 at 13:42:48 to 13:48:21. 377 Gov’t Ex. Fourteen at 17. 5A, folder AudioVideo 01–29–13, file 2013–01–29 378 Gov’t Ex. Eleven at 9. at 13:42:48 to 13:48:21. 394 Gov’t Ex. Fourteen at 8.

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osteoarthritis ‘‘cannot be included findings that could not be objective findings that could not be substantiated.’’ 395 He explained: supported by his examination of this supported by the actual examination of Early arthritis does cause knee pain, but so patient. Dr. Severyn stated that Agent Moses in the visit on March 11, do many other things in young, healthy unsupported findings appearing in Dr. 2013 included: patients. Most common are ligament strains, Zaidi’s report of this examination [T]he reactivity of the pupils to light, the followed by inflammation of the cartilage included pupil reactivity to light, diffuse tenderness of the left knee, when the behind the knee cap, which is different than tenderness in the joint, the absence of left knee is touched. The absence of redness cartilage between the bones, between the redness and swelling, range of motion, or swelling being reported in here requires a tibia and the femur, which is the real and normal motor and sensory testing of physical examination to be performed, which communicated message, when we use the the leg.405 Similarly, while the plan of was not. Range of motion testing requires a term osteoarthritis of the knee.396 treatment for this visit indicated home classic evaluation, or at least flexion and Also of concern to Dr. Severyn was extension, and it was not [done]. The lower exercise as a feature of treatment, no extremity examination being normal with the plan of treatment that Dr. Zaidi home exercise program had been both motor and sensory testing is reported based on this examination and history. provided.406 Agent Moses confirmed here, and that did not occur.413 Dr. Zaidi prescribed Vicoprofen, which that throughout his visits there was is a combination of ibuprofen, a non- Here again, Dr. Severyn noted that never any discussion of physical although it appears as a term of the steroidal anti-inflammatory, and therapy, no discussion about doing treatment plan, there is no evidence hydrocodone (or Vicodin), a controlled exercises at home, nor was he ever given suggesting Dr. Zaidi provided Agent substance pain medication.397 ‘‘[A] any written materials relating to home Moses with information about a home more justifiable approach,’’ according to 407 exercise. exercise program.414 Having seen the Dr. Severyn, ‘‘would have been to use a Dr. Severyn also noted with some audio-video recording of this office non-controlled substance analgesic concern the subjective report for this visit, I find there is substantial evidence medication, such as Tramadol.’’ 398 visit, where Dr. Zaidi states that Agent to support Dr. Severyn’s finding that Dr. Missing from the plan, according to Dr. Moses was complaining of both knee Zaidi did not examine Agent Moses Severyn, is any mention of the role the and leg pain, and that the pain level he sufficiently to support the findings patient’s daily activities should play in was experiencing was between four and appearing in this history and the treatment plan: ‘‘[T]here is no 408 five. While the record supports a examination report. reference to a change in daily activities, complaint of knee pain, there is nothing In his review of Agent Moses’ fourth periods of rest, possibly work in the record that supported a complaint office visit, on April 9, 2013, Dr. modification, use of physical therapy or of leg pain. Further, as Dr. Severyn Severyn noted many of the same the providing of a home exercise correctly observed, Agent Moses concerns—that Dr. Zaidi’s written program’’ with the result that the reported pain levels only to the office history and report of physical treatment plan is ‘‘very controlled- assistant, not to Dr. Zaidi on this visit, examination reported conditions that substance focused, as its initial and the assistant accurately reported 399 could be legitimately entered only if a approach to care.’’ In Dr. Severyn’s that the pain levels described by Agent physical examination had been opinion, ‘‘what has been presented in Moses were between two and three.409 performed. Having reviewed the the portions of the record that did take There is nothing in the record that recording of the visit on April 9, 2013 place in the examination room does not would support an examination report of (which lasted three minutes and 33 justify prescribing a controlled pain level five that Dr. Zaidi reported in seconds),415 I concur with Dr. Severyn’s substance, not at that time of the his medical history for this visit, Agent 400 conclusion that Dr. Zaidi did not patient’s care, for those conditions.’’ Moses stated the written report by Dr. conduct a physical examination that Agent Moses returned for an office Zaidi, indicating a reported pain level of would support the written findings in visit on February 12, 2013, which was 410 four or five, was not accurate. his report.416 preserved in an audio-video recording, Agent Moses’ third visit to Dr. Zaidi’s In his review of the fifth and final the contents of which have been office, on March 11, 2013, lasted two 401 visit by Agent Moses on May 6, 2013, transcribed. During this visit, Dr. minutes and 25 seconds 411 and was Dr. Severyn noted the same concerns as Zaidi spent approximately 140 seconds recorded by audio and audio-video 402 were presented in his discussion of the in the room with Agent Moses. At no recordings.412 According to Dr. Severyn, fourth visit.417 Again, after reviewing time during this visit did Dr. Zaidi the audio-video recording of this visit, touch Agent Moses, nor did he have 405 Id. at 145–46. I find substantial evidence to support Agent Moses perform any diagnostic 406 Id. at 149; Gov’t Ex. Fourteen at 12. Dr. Severyn’s findings based on a 403 407 actions. As Dr. Severyn indicated, Tr. at 546. demonstration that Dr. Zaidi performed there was no physical examination 408 Id. at 148; Gov’t Ex. Fourteen at 12. 404 409 Tr. at 148; Gov’t Ex. Eleven at 14–15; Gov’t Ex. performed during this visit. Agent Moses, mostly facing the wall while reading Nevertheless, Dr. Zaidi prepared a Fourteen at 16. 410 Tr. at 499. and writing notes, while Officer Moses was seated on the other side of the office. Notwithstanding this report of physical examination that 411 Gov’t Ex. 5c, folder Moses UC Visit, subfolder brief period of obstruction, the recording is AudioVideo, file 03–11–2013 at 14:43:15–14:45:37. sufficiently intact to permit me to conclude, as I do, 395 Tr. at 143. 412 Gov’t Ex. 5c; Gov’t Ex. Eleven at 19–22; Gov’t that at no time during this office visit did Dr. Zaidi 396 Id. Ex. Fourteen at 11. Note the audio-video recording come into close proximity to or contact with Agent 397 Id. at 144; Gov’t Ex. Fourteen at 8. includes Christy Barrett preparing Agent Moses for Moses. 398 his visit with Dr. Zaidi. Some of the video images Id. at 144. 413 Tr. at 149–50. of this exchange were obscured, as the recording 399 Id. at 144–45. 414 device apparently became improperly positioned. Id. at 150; Gov’t Ex. Fourteen at 11. 400 Id. at 145. 415 These limitations did not materially affect my Gov’t Ex. 5d, folder AudioVideo, file SM–04– 401 Gov’t Ex. 5b; Gov’t Ex. Fourteen at 11–15; ability to discern the nature of Ms. Barrett’s 09–13 at 9:37:25 to 9:40:58; Gov’t Ex. Eleven at 23– Gov’t Ex. Eleven at 14–18. preparation, as the audio portion of this interview 27. As was the case with the recording of March 11, 402 Gov’t Ex. 5b, folder Moses UC 2, subfolder was intact. Similarly, approximately five seconds of 2013, a portion of the time Christy Barrett spent AudioVideo 02–12–13, file 2013–02–12 at 14:43:30 Dr. Zaidi’s visit with Agent Moses was obscured with Agent Moses lacks a video picture, but the to 14:45:49. either by Agent Moses’ hand or his clothing. audio portion is unaffected. 403 Id. Immediately before and after this period of 416 Tr. at 151. 404 Tr. at 145. obstructed view, Dr. Zaidi was seated away from 417 Id. at 151–53.

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no physical examination of Agent Moses this point was not a reasonable solution, investigation and, in the absence of such during this visit.418 Dr. Zaidi conducted and that decision in the face of these red investigation, were not for a legitimate the visit, which lasted 80 seconds,419 flags ‘‘is one that I don’t find to be medical purpose. His decision to while standing at the head of the medically in keeping with . . . prevailing prescribe narcotic pain medication to examination table, while Agent Moses standards of care.’’ 428 He said he could three undercover agents despite the remained seated at all times, without find no medical reason for changing presence of numerous red flags any physical contact between the Agent Moses’ prescription from Vicodin constituted a material breach of the two.420 to Percocet.429 Similarly, when asked duties owed by physicians practicing I also concur with Dr. Severyn’s whether it appears Dr. Zaidi took into under the Controlled Substances Act, observation that although his treatment account the risk of addiction and the and his prescription practice in these plan indicates he prescribed a home risk of diversion of controlled three cases did not meet Ohio’s exercise program, Dr. Zaidi failed to substances, Dr. Severyn opined that requirements for the distribution of propose a home exercise plan for this while the milligram levels prescribed controlled substances. patient.421 Further, Dr. Severyn stated were primarily in the low range,430 he Second, the evidence establishes that that there was no evidence Dr. Zaidi believed Dr. Zaidi did not take into Dr. Zaidi lacks the experience and attempted to determine whether Agent account the risk of addiction ‘‘to an insight needed to participate in the Moses’ pain interfered with his daily adequate degree,’’ 431 and did not focus controlled substance distribution activities, with his quality of family life, attention on the risk of diversion, system. His decision to manage a pain or with social activities.422 focusing instead ‘‘on the risk of clinic using a protocol that permitted Dr. Severyn also expressed the consumption.’’ 432 Dr. Severyn stated the issuance of prescriptions for opinion that Dr. Zaidi failed to resolve that there needed to be interaction controlled substances without red flags that arose when Agent Moses between the patient and physician in conducting physical examinations sought to increase his medication order to determine whether changes in threatens the public safety. Either during the fourth visit.423 The specific medication have to be made, and through ignorance or deliberate exchange noted here began when Dr. confirmed there was some interaction indifference, Dr. Zaidi’s decision to Zaidi asked if Agent Moses had between Agent Moses and Dr. Zaidi.433 establish such operations indicates he experienced any changes since the last Such interaction would need to reflect lacks sufficient insight and experience office visit. After stating that there was the patient explaining whether the to be trusted to participate in the stiffness in the knee, Agent Moses told existing medication is helping or not— controlled substance distribution Dr. Zaidi, ‘‘I was talking to a guy I work something Dr. Severyn said did take process. 434 with [who] had like a similar issue, and place, but only to a ‘‘limited’’ degree. Third, the evidence establishes that he said that he tried Percocet and that Dr. Severyn expressed concern, Dr. Zaidi misrepresented the scope and character of both the physical like knocked it out . . . .’’ Without however, that the only reason for examinations he performed and medical hesitating, Dr. Zaidi responded, ‘‘Well, changing Agent Moses’ prescription for histories obtained during office visits that’s a dramatic statement. I will write controlled substances was that ‘‘a friend with three DEA undercover agents. you Percocet but it will not knock it tried Percocet for similar symptoms and 435 While such a practice may well out.’’ 424 After warning that Percocet that it improved.’’ In Dr. Severyn’s constitute fraud, the Government made was ‘‘a little stronger’’ and stating that opinion, changing the prescription upon no claim of fraud here. Instead, it asserts he thought ‘‘the main thing that will this history was not at all medically 436 that this feature of Dr. Zaidi’s come close to knocking it out is [a] appropriate. From this review of Dr. Zaidi’s prescription practice constitutes cortisone injection in there,’’ Dr. Zaidi prescription practice concerning Agent conduct that is not otherwise addressed noted that Agent Moses has ‘‘been going Moses, Dr. Severyn stated that in his by the enumerated factors found in 21 pretty fast here on the medications’’ opinion, ‘‘the prescribing of controlled U.S.C. 823(f)(1–4) but which during these four visits.425 He warned substances in this patient’s treatment nonetheless is conduct that ‘‘may that ‘‘you are going to not get advice was not prescribing medication for a threaten the public health and from too many friends’’ regarding what legitimate purpose or in the usual safety.’’ 438 medication is appropriate for the next course of professional practice.’’ 437 Fourth, after the Government step, explaining ‘‘[t]his is how people presented evidence sufficient to get in trouble.’’ 426 Analysis Dr. Severyn said Dr. establish that his continued DEA Zaidi’s warning that the patient is Four core facts compel my registration would be inconsistent with heading for trouble and should not be determination that it would be the public interest, Dr. Zaidi failed to getting advice from friends about what inconsistent with the public interest for 427 present evidence of an medication to take was appropriate. the Administrator to permit Dr. Zaidi to acknowledgement of wrongdoing and a According to Dr. Severyn, however, continue prescribing controlled proposal for meaningful remediation. prescribing Percocet four times daily at substances. First, the evidence Accordingly, I will recommend that the establishes that Dr. Zaidi repeatedly Administrator revoke Dr. Zaidi’s DEA 418 Gov’t Ex. 5e, folder Sept 05 2013, subfolder prescribed controlled substances under AudioVideo, file 05–06–2013 at 09:55:14–09:56:46 registration and deny any pending (vital signs and history taken by Ms. Barrett), conditions that warranted further application for renewal of the same. 09:58:50–10:00:10 (visit with Dr. Zaidi). 419 Gov’t Ex. 5e, folder Sept 05 2013, subfolder 428 Id. at 159–60. Elements of a Prima Facie Case AudioVideo, file 05–06–2013 at 09:58:50–10:00:10. 429 Id. at 276–67. This administrative action began 420 Id. 430 Id. at 202. when the DEA’s Administrator through 421 431 Tr. at 153. Id. at 160. her Deputy Administrator issued an 422 Id. at 155. 432 Id. at 161. 423 Id. at 156–57. 433 Id. at 202. order proposing to revoke Dr. Zaidi’s 424 Gov’t Ex. Eleven at 25. 434 Id. at 203. DEA Certificate of Registration and 425 Id. 435 Id. at 277. ordering him to show cause why that 426 Id. 436 Id. 427 Tr. at 275. 437 Id.at 153. 438 21 U.S.C. 823(f)(5).

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registration should not be revoked.439 Moreover, although the Administrator is practice in Ohio; nor is there evidence The order alleged that Dr. Zaidi obliged to consider all five of the public that the state’s medical board elected to distributed controlled substances by interest factors, she is ‘‘not required to evaluate any of Dr. Zaidi’s treatment issuing prescriptions under conditions make findings as to all of the records (or even that it is currently that violated provisions in sections factors.’’ 446 The Administrator is not aware of this administrative action). 823(f) and 824(a)(4) of Chapter 21 of the required to discuss each factor in equal From the record before me I cannot 440 United States Code. Thus, in order to detail, or even every factor in any given discern a reason for the Board’s 447 revoke Dr. Zaidi’s Certificate of level of detail. The balancing of the inaction, and as such I cannot conclude Registration, the Government has the public interest factors ‘‘is not a contest that its inaction establishes that Dr. burden of establishing, by at least a in which score is kept; the Agency is not Zaidi’s prescription practice conformed preponderance of the evidence, that required to mechanically count up the to Ohio law. Such evidence, standing allowing Dr. Zaidi to continue to issue factors and determine how many favor alone, cannot support a finding under prescriptions for controlled substances the Government and how many favor Factor One. is contrary to the public interest.441 the registrant. Rather, it is an inquiry While the burden of establishing that which focuses on protecting the public Deleted Discussion (Factor Two) Dr. Zaidi’s certification contravenes the interest.’’ 448 Factor Three public interest never shifts from the In making a medical judgment Government, once the Government concerning the right treatment for an Under Factor Three the Administrator meets this burden, Dr. Zaidi has the individual patient, physicians require a is to consider an applicant’s conviction opportunity to present evidence that he certain degree of latitude. Hence, record under federal or state laws accepts responsibility for his ‘‘[w]hat constitutes bona fide medical relating to the manufacture, misconduct, and has taken appropriate practice must be determined upon distribution, or dispensing of controlled steps to prevent misconduct in the consideration of evidence and attending substances.452 Neither the Government future.442 circumstances.’’ 449 nor Respondent has raised any claims Under the registration requirements pertaining to Factor Three, and there is Factor One—Recommendations of the found in 21 U.S.C. 823(f), the no evidence that Dr. Zaidi has been State Licensing Board Administrator is expected to consider convicted of any laws related to five factors in determining the public In its post-hearing brief, the dispensing controlled substances. interest when presented with the Government does not propose to use Accordingly Factor Three does not serve actions of a physician engaged in Factor One as a basis for arguing that the as a basis for revoking Respondent’s prescribing controlled substances. These continued registration of Dr. Zaidi is DEA Certificate of Registration. factors are: contrary to the public interest.450 Factor (1) The recommendation of the One considers ‘‘[t]he recommendation Factor Four appropriate State licensing board or of the appropriate State licensing board professional disciplinary authority. Under Factor Four the Administrator or professional disciplinary authority.’’ is required to consider Respondent’s (2) The applicant’s experience in Although the recommendation of the dispensing, or conducting research with ‘‘compliance with applicable State, applicable state medical board is Federal, or local laws relating to respect to controlled substances. probative to Factor One, the (3) The applicant’s conviction record controlled substances.’’ 453 ‘‘A Administrator possesses ‘‘a separate under Federal or State laws relating to prescription for a controlled substance oversight responsibility with respect to the manufacture, distribution, or is unlawful unless it has been issued for the handling of controlled substances’’ dispensing of controlled substances. a legitimate medical purpose by an (4) Compliance with applicable State, and therefore must make an individual practitioner acting in the Federal, or local laws relating to ‘‘independent determination as to usual course of professional controlled substances. whether the granting [or revocation] of practice.’’ 454 Departing from the usual (5) Such other conduct which may [a registration] would be in the public course of professional practice can have 451 threaten the public health and safety.443 interest.’’ profound negative consequences. Here, Any one of these factors may We do not have an express a preponderance of the evidence constitute a sufficient basis for taking recommendation by the applicable establishes that with respect to the three action with respect to a Certificate of regulators in Ohio. This may be a factor undercover agents, Dr. Zaidi prescribed Registration.444 Any one or a to consider when evaluating the weight controlled substances without having a combination of factors may be relied to be given to Dr. Severyn’s analysis. legitimate medical purpose and under upon, and when exercising authority as There is, however, no substantial conditions that fell outside of the usual an impartial adjudicator, the evidence of a ‘‘recommendation’’ in course of professional practice. Administrator may properly give each support of Dr. Zaidi’s continued As the Government aptly notes in its factor whatever weight she deems post-hearing brief, when she determines appropriate in determining whether a 02, 43947 (DEA October 31, 1988); see also David E. Trawick, D.D.S., 53 FR 5326–01, 5327 (DEA whether a practitioner’s conduct registration should be rejected.445 February 23, 1988). ‘‘exceeds the bounds of professional 446 Hoxie v. DEA, 419 F.3d 477, 482 (6th Cir. practice when prescribing controlled 439 ALJ Ex. One. 2005); see also Morall v. DEA, 412 F.3d at 173–74 455 440 Id. at 1. (D.C. Cir. 2005). substances,’’ the Administrator 441 21 U.S.C. 823(f); 21 U.S.C. 824(a); 21 CFR 447 Trawick v. DEA, 861 F.2d 72, 76 (4th Cir. 1301.44(d)–(e); see also Steadman v. SEC, 450 U.S. 1988). 452 21 U.S.C. 823(f)(3). 91, 100–01 (1981). 448 Jayam Krishna-Iyer, M.D., 74 FR 459–01, 462 453 21 U.S.C. 823(f)(4). 442 Marc G. Medinnus, D.D.S., 78 FR 62683–01, (DEA January 6, 2009). 454 Sun & Lake Pharmacy, Inc., D.B.A. The 62691–93 (DEA October 22, 2013). 449 United States v. Collier, 478 F.2d 268, 272 (5th Medicine Shoppe, 76 FR 24523–02, 23530 (DEA 443 21 U.S.C. 823(f). Cir. 1973). May 2, 2011). 444 Robert A. Leslie, M.D., 68 FR 15227–01, 15230 450 Government’s Proposed Findings of Fact, 455 Government’s Proposed Findings of Fact, (DEA March 28, 2003). Conclusions of Law[,] and Argument at 21. Conclusions of Law[,] and Argument at 22 (quoting 445 Morall v. DEA, 412 F.3d 165, 173–74 (D.C. Cir. 451 Mortimer B. Levin, D.O., 55 FR 8209–01, 8210 United States v. Moore, 423 U.S. 122, 142–43 2005); JLB, Inc., d/b/a Boyd Drugs, 53 FR 43945– (DEA March 7, 1990). (1975)).

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‘‘generally looks to state law.’’ 456 The well before the hearing that it intended While our record shows that Dr. Zaidi Government points out that Ohio to question him about his response to did not actually prescribe Opana, it is regulations prohibit a physician from these red flags.459 As a matter of law, silent with respect to whether Dr. Zaidi prescribing controlled substances the Government is entitled to an recognized this as a red flag needing without first ‘‘taking into account the inference that had he testified, Dr. Zaidi resolution. drug’s potential for abuse, the would have acknowledged fabricating Similarly, Dr. Severyn considered possibility the drug may lead to much of the information in the officers’ Agent Moses’ request for an increase in dependence, the possibility the patient medical records and failing to resolve medication at the fourth office visit to will obtain the drug for non-therapeutic the red flags identified by Dr. Severyn, be a red flag, where the request was use or to distribute to others, and the and would have acknowledged that his based solely on the recommendation of possibility of an illicit market for the treatment of the undercover agents fell ‘‘a guy [Agent Moses] work[s] with’’ 465 drug.’’ 457 below accepted medical standards.460 who reported successful treatment using There is evidence, aptly noted in With such an inference occasioned by Percocet.466 I attribute great weight to Respondent’s post-hearing brief, that Dr. his silence in the face of independent Dr. Severyn’s opinion that these all were Zaidi did to some extent take into evidence showing that his practice fell unresolved red flags. account the risks of abuse and diversion below accepted medical standards, Dr. To much the same effect was Dr. associated with the drugs he was Zaidi cannot now be understood to have Zaidi’s apparent complacence when a prescribing. Dr. Zaidi, for example, conformed to those standards. patient sought an increase in the screened all cases using the OARRS Independent of such an inference, amount of OxyContin being prescribed. protocol, required urine drug screening however, the same result is warranted. Again, there was no evidence that Dr. at the initial visit, prescribed low doses I have considered the steps taken to Zaidi engaged Officer Parkison in any of the narcotics (at least initially), resolve red flags identified by Dr. inquiry that would probe why existing required check-ins every two weeks, Severyn. As the Government has levels of pain medication were warned against taking medication that suggested, Dr. Severyn’s conclusion is inadequate.467 According to Dr. had been prescribed to others, and supported by evidence that Dr. Zaidi Severyn, given that OxyContin has been described the risks of moving quickly to failed to resolve numerous red flags the so ‘‘largely diverted and abused,’’ the ever stronger narcotic medication.458 agents presented during their office failure to make such an inquiry No one distinct set of circumstances visits.461 constituted the failure to resolve a permits me to determine the extent to Testimony from Dr. Severyn helps to relevant red flag.468 which Dr. Zaidi recognized the potential identify what red flags were presented Respondent in his post-hearing brief for abuse or diversion when treating the to Dr. Zaidi during these visits. These correctly points out that resolving red undercover agents. All of the foregoing include, for example, being presented flags can take time—a point with which office protocols may have been by a patient’s request for OxyContin by Dr. Severyn concurred.469 Specifically, instituted to reflect Dr. Zaidi’s concern brand name.462 Dr. Severyn explained Dr. Severyn opined that a treating for the potential misuse or diversion of why this conduct needs to be addressed source generally will not sufficiently controlled substances. Given by the prescribing physician, as it observe and evaluate a patient in one or Respondent’s decision to not testify, indicates that the patient was relying on two visits, but that instead will address however, our record is silent with outside sources (here either friends or red flags over time, with the length of respect to Dr. Zaidi’s mental assessment family) to chart the course of time dependent on the of these cases. I am thus left to discern medication, ‘‘instead of relying on my circumstances.470 what factors Dr. Zaidi took into account expertise to introduce a specific Dr. Severyn added, however, that when prescribing these drugs based on medication.’’ 463 depending on the indicators presenting the contents of the written medical I give great weight to Dr. Severyn’s as red flags, the physician may have to records and on what I heard and saw in assessment of circumstances that do more than just wait.471 There is, reviewing the recordings of the constitute red flags, given his however, no evidence that Dr. Zaidi undercover agents’ office visits. In doing substantial relevant experience in took any action when confronted with so, I cannot help but be influenced by prescribing controlled substances for these red flags, other than to accede to the evidence of falsification present in treating pain, his understanding of the the requests of his patients to increase these records. Knowing now what pressures facing pain medicine the amount of pain medication being actually occurred during the office visits physicians, and his familiarity with prescribed. and comparing that to what Dr. Zaidi Ohio’s pain management regulations. Another red flag was the refusal of a wrote in the patient records, I find little Thus, when he relates that a pain patient to obtain an MRI despite the reason to believe these protocols were management patient’s request for treating physician’s order for such instituted to reduce the risk of abuse or OxyContin by name has been a red flag imaging.472 While I agree with diversion, but were instead instituted to for pain management physicians for ‘‘a Respondent’s proposition that MRIs are provide some degree of cover for Dr. decade or more’’ I attribute great weight expensive and cost may have been a Zaidi against regulatory action by the to that opinion. The same was true factor Dr. Zaidi took into account when DEA, should his records ever by subject when Officer Leonard requested Opana, faced with this particular red flag, I to audit. which both Officer Leonard and Dr. agree with the opinion expressed by Dr. As the Government correctly points Severyn stated was now becoming Severyn in this regard. We have three out, in its prehearing statement the increasingly diverted and abused.464 Government put Dr. Zaidi on notice 465 Gov’t Ex. Eleven at 25. 459 Government’s Proposed Findings of Fact, 466 Tr. at 156–57. 467 456 Id. (citing Kamir Garces-Mejias, 72 FR 54931– Conclusions of Law[,] and Argument at 28 and Id. at 113. 02, 54935 (DEA September 27, 2007) & United citations therein. 468 Id. at 113–14. Prescription Services, Inc., 72 FR 50397–01, 50407 460 Id. 469 Post-Hearing Brief of Respondent at 5 and (DEA August 31, 2007)). 461 Id. at 23. citations therein. 457 Ohio Admin. Code 4731–11–02(C). 462 Tr. at 95–96. 470 Tr. at 173–74. 458 Post-Hearing Brief of Respondent at 14–19 and 463 Id. at 96. 471 Id. at 174–75. citations to the record therein. 464 Id. at 134, 578. 472 Id. at 185, 266–67.

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patients who demonstrated the ability to evidence supports Dr. Severyn’s opinion and shall indicate the diagnosis and pay $300 for their initial visits and $95 that Dr. Zaidi had no basis for purpose for which the controlled for each of four or five subsequent visits. diagnosing either Agent Parkison or substance is utilized, and any additional The refusal of Agent Moses to comply Detective Leonard with lumbar information upon which the diagnosis is with Dr. Zaidi’s recommendation that radiculitis, given the examinations that based.’’ 480 As the Government correctly he pay $200 for a cortisone shot, and the supported those diagnoses and given observed in its post-hearing brief, refusal of Agent Parkison to pay $350 that neither officer complained of pain ‘‘Respondent repeatedly fabricated the for an MRI ‘‘is very suspicious, and it is radiating into the leg.476 I find officers’ medical records by exaggerating a red flag.’’ 473 What I saw in the video uncontroverted and persuasive Dr. their pain levels and falsely stating that recordings of the office visits where Dr. Severyn’s description of the steps his ‘Plan of Treatment’ included ‘home Zaidi made these recommendations needed to establish such a diagnosis; exercise’ which was never proposed, leads me to conclude that Dr. Zaidi saw and I find that the examinations of suggested, nor discussed at any no significance in the undercover record would not permit such a visit.’’ 481 agents’ refusal to procure these diagnosis in the ordinary course of I found this part of the record treatments and diagnostic tools. He was professional practice, for the reasons particularly troubling. Had I before me indifferent—the patients could comply presented by Dr. Severyn. I believe Dr. only Dr. Zaidi’s written medical records with his orders or not—but he would Zaidi purposely included more serious of the officers’ treatment, I would have continue prescribing controlled diagnoses to support prescribing more reasonably concluded that Dr. Zaidi was substances regardless. controlled substances than were responding to complaints of pain that While a patient’s request for brand medically necessary and to insulate him were significantly more severe than name opiates does not in and of itself from DEA investigations, perhaps not what was actually presented during compel a conclusion that the patient is realizing that the DEA performs these office visits. Dr. Zaidi’s assistant seeking to divert or abuse pain undercover operations that include accurately recorded pain levels as they medication, the request must be surreptitious audio-video recordings of were presented to her by the undercover addressed by the treating physician. patient visits. officers, generally noting pain in the There is, however, nothing in the record I find the evidence establishes that by range of two, three, or four on a ten- suggesting that Dr. Zaidi regarded these prescribing controlled substances based point scale. In his typewritten chart, requests for brand-name pain-killers as on a diagnosis of radiculitis, Dr. Zaidi however, Dr. Zaidi indicates pain levels anomalous or requiring further inquiry. did so without a legitimate medical of five, which could not be Similarly, a patient’s decision not to purpose. As such, Dr. Zaidi’s continued substantiated by either what the patients pursue more conservative treatment DEA registration would be inconsistent said to the assistant or what they said (such as cortisone injections) or obtain with the public interest under Factor to Dr. Zaidi. The evidence shows Dr. 477 diagnostic information (such as is Four. Zaidi misrepresented and exaggerated There is a third basis under Factor available with an MRI) by itself is not the patients’ complaints of pain. Four that warrants evaluation. Apart conclusive of an intent to abuse or As Dr. Severyn noted with some from failing to resolve red flags and divert narcotics, but such decisions concern, once it became clear that Dr. basing controlled substance have to be taken into account by the Zaidi exaggerated the patients’ reports prescriptions upon an unsustainable prescribing source. To the extent Dr. of pain, and once it became clear that diagnosis of radiculitis, Dr. Zaidi failed Zaidi elected to not dispute Dr. Dr. Zaidi’s diagnoses for radiculitis Severyn’s thoroughly documented to comply with Ohio law in the could not be substantiated by the actual observations, I am entitled to infer that maintenance of his medical records. physical examinations he performed, Dr. Zaidi failed to consider the Under Ohio law a physician prescribing ‘‘the entire validity of the record possibility that the undercover agents controlled substances must ‘‘complete becomes subject to extreme doubt and sought drugs for non-therapeutic and maintain accurate medical records questioning.’’ 482 Similarly, Dr. Zaidi’s reasons or that the drugs he prescribed reflecting the physician’s examination, report of leg pain and early could have led to dependence. To the evaluation, and treatment of all the osteoarthritis of the knee in Agent extent such a failure indicates a lack of physician’s patients.’’ 478 Note that this Moses was exaggerated, and the patient experience, Dr. Zaidi’s failure to resolve requirement applies to all prescriptions never reported limb or leg pain.483 red flags—standing alone—has been involving controlled substances, Beyond exaggerating the patients’ addressed in the Factor Two discussion regardless of whether the diagnosed complaints of pain, Dr. Zaidi falsely above. To the extent it led to the condition relates to pain, and regardless reported results from tests that were issuance of actual prescriptions for of the duration of treatment.479 Thus, it never performed. From my review of the controlled substances, Dr. Zaidi’s is a requirement arising from the very recordings of the undercover officers’ practice violated Ohio law relating to start of the patient-physician visits, I find Dr. Zaidi falsely reported the prescription of controlled relationship, once the physician their pupils’ reactivity to light, their substances.474 In turn, this violation of determines the need to prescribe heart and chest sounds, the condition of Ohio law leads to my finding that Dr. controlled substances. their abdomens, their lower extremity Zaidi’s continued DEA registration In addition, under this regulation, a sensory and motor condition, and their would be inconsistent with the public medical record of treatment involving limbs’ range of motion. Further, I find interest under Factor Four.475 controlled substances must ‘‘accurately Dr. Zaidi falsely described prescribing Independent of Dr. Zaidi’s failure to reflect the utilization of any controlled conservative measures (including home resolve red flags is evidence that the substances in the treatment of a patient exercise programs) in their medical diagnoses upon which controlled substances were prescribed cannot 476 Tr. at 77–78, 118. 477 480 Ohio Admin. Code 4731–11–02(D). withstand scrutiny. I find substantial 21 U.S.C. 823(f)(4). 478 Ohio Admin. Code 4731–11–02(D). 481 Government’s Proposed Findings of Fact, 479 Ohio Admin. Code 4731–11–02(A) (‘‘A Conclusions of Law[,] and Argument at 23, and 473 Id. at 278. physician shall not utilize a controlled substance citations to the record therein. 474 Ohio Admin. Code 4731–11–02(C). other than in accordance with all of the provisions 482 Tr. at 121. 475 21 U.S.C. 823(f)(4). of this chapter of the Administrative Code’’). 483 Gov’t Ex. Fourteen at 8–9.

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records, when instead he prescribed undercover officers’ complaints ‘‘were weeks,’’ 494 and articulates a standard of controlled substances as the first course for acute pain and not for ‘intractable’ care applicable ‘‘[w]hen utilizing any of treatment. or ‘chronic’ pain’’ and argues that ‘‘[t]he prescription drug for the treatment of Respondent in his post-hearing brief statutes have no application for acute intractable pain on a protracted basis or notes that Dr. Severyn offered no pain.’’ 489 He asserts further that each of when managing intractable pain with statutory or other authority ‘‘which sets the undercover agents ‘‘presented with prescription drugs in amounts or forth mandatory requirements for a short term, acute pain for which there combinations that may not be physical examination and had been no prior treatment.’’ 490 appropriate when treating other medical 484 diagnosis.’’ Given the requirement Our record reflects, however, that conditions.’’ 495 under Ohio law for all physicians to upon making his initial diagnoses in From our record, I found no evidence maintain accurate medical records, I these cases, Dr. Zaidi elected not to that Dr. Zaidi regarded as clinically find Dr. Zaidi’s medical records characterize the patients’ conditions (all significant the twelve-week benchmark documenting the visits and treatment of of which involved potentially chronic in his treatment of the three undercover the three undercover officers violated conditions) as either chronic or acute. agents. His actions during the office 485 Ohio law. Accordingly, this Instead, he prescribed opioid treatment visits immediately before and after the constitutes evidence that Dr. Zaidi’s exclusively, and during the first twelve twelfth week were remarkable only in continued DEA registration would be weeks treated the patients as though that they remained essentially the inconsistent with the public interest their symptoms were not likely to same—they were cursory, involved no 486 under Factor Four. change or improve. At no time during physical examinations, and focused Respondent also describes at length the first twelve weeks of treatment, for almost entirely on the patients’ requests the attention Dr. Severyn gave to example, did Dr. Zaidi indicate he for additional or different narcotics. What is notable in the treatment of practice requirements that arise after a expected to reduce the officers’ reliance chronic pain in Ohio, however, is that patient has been receiving pain on narcotics. Thus, from all outward once pain ‘‘has persisted after medication for more than twelve appearances, Dr. Zaidi was treating 487 reasonable medical efforts have been weeks. Before I address Respondent’s these patients as though their conditions concerns, I note that the foregoing made . . . either continuously or were not acute, but were instead episodically, for longer than three analysis depended not upon regulations chronic, from the outset of treatment. cited by Respondent regarding chronic continuous months,’’ 496 Ohio law or intractable pain, but instead upon I am mindful that Dr. Zaidi in his requires pain management physicians to regulations relating to the dispensation post-hearing brief notes that he did not include in their written records a of controlled substances generally. diagnose any of the undercover agents ‘‘periodic assessment and Thus, whether Ohio’s regulations with ‘‘chronic’’ pain; nor, for that documentation of the patient’s regarding intractable pain do or do not matter, did he describe any of the pain functional status, including the ability 491 apply here has no bearing on Dr. Zaidi’s as ‘‘acute.’’ I am, however, guided by to engage in work or other purposeful failure to respond to red flags, failure to Ohio statutory language that defines activities, the pain intensity and its properly diagnose patient conditions, ‘‘chronic pain’’ as pain that persists after interference with activities of daily and failure to maintain accurate records. treatment for longer than three living, quality of family life and social 492 Under Factor Four, the evidence continuous months. As such, by the activities, and physical activity of the establishes that it would be inconsistent twelfth week of treatment, Dr. Zaidi’s patient.’’ 497 No such assessment was with the public interest to permit Dr. failure to characterize the agents’ made, for example, when Officer Zaidi to continue to hold a DEA conditions as chronic is irrelevant. Leonard appeared on March 21, 2013, registration, regardless of whether the The distinction regarding chronic or either in his interview with Ms. conditions described in the officers’ acute designations made by Dr. Severyn, Barrett 498 or during his visit with Dr. history of treatment fell within the however, did not depend on the Zaidi, twenty-one weeks into 499 scope of Ohio’s laws concerning the patients’ condition during the first treatment. prescription of controlled substances for twelve weeks. My understanding of his As noted in the Government’s post- persons with intractable pain. testimony is that whether or not a hearing brief, Dr. Severyn found that Having said that, I note that I do not patient is identified as having when treatment of the undercover interpret Dr. Severyn’s testimony as intractable or chronic pain during the agents extended into the twelfth week, having required Dr. Zaidi to conform to first twelve weeks, the physician must Dr. Zaidi failed to assess the impact of the standards for treating intractable re-assess the patient once the course of pain on their physical and pain from the start of the physician/ treatment enters into its twelfth week. psychological functions, failed to patient relationship. As Respondent That appears to be what the regulation discuss alternative treatment plans, and noted in his post-hearing brief, Dr. cited by Respondent calls for. The failed to document how their pain regulation defines ‘‘intractable pain’’ as affected their employment, daily and Severyn acknowledged that the statute 500 and regulation treating chronic pain ‘‘a state of pain that is determined, after social activities, and family life. In (Ohio Rev. Code § 4731.052) and reasonable medical efforts have been these respects, the evidence supports, intractable pain (Ohio Admin. Code made to relieve the pain or cure its and I find persuasive, Dr. Severyn’s 4731–21–02) do not apply during that cause, to have a cause for which no opinion that Dr. Zaidi’s treatment of the phase of treatment where the diagnosis treatment or cure is possible or for three undercover agents after the twelfth 493 week failed to conform to the applicable is of acute pain, but apply only after which none has been found.’’ It also treatment extends past twelve weeks.488 defines ‘‘protracted basis’’ as ‘‘a period in excess of twelve continuous 494 Ohio Admin. Code 4731–21–01(L). Respondent proposes that the 495 Ohio Admin. Code 4731–21–02(A). 496 Ohio Rev. Code § 4731.052(A)(1). 484 Post-Hearing Brief of Respondent at 10. 489 Id. 497 Ohio Admin. Code 4731–21–02(B)(2). 485 Ohio Admin. Code 4731–11–02(D). 490 Id. at 5. 498 Gov’t Ex. Ten at 32–33. 486 21 U.S.C. 823(f)(4). 491 Id. at 9. 499 Gov’t Ex. Ten at 33–35. 487 Post-Hearing Brief of Respondent at 3–12. 492 Ohio Rev. Code § 4731.052(A)(1). 500 Government’s Recommended Findings of Fact, 488 Id. at 4. 493 Ohio Admin. Code 4731–21–01(G). Conclusions of Law[,] and Argument at 24–25.

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standard of care and violated Ohio law the past he had written a prescription making an adverse finding under Factor regarding the treatment of chronic 501 for Vicodin to his daughter.’’ 509 Four. and intractable pain.502 Therefore, when Respondent’s counsel pointed out that The record does not, however, Dr. Zaidi prescribed controlled the evidence does not show whether the include substantial evidence of an 510 substances based on this treatment, he prescription was filled. However, actual instance where Ms. Maniglia had did so without a legitimate medical ‘‘[t]he responsibility for the proper pre-signed prescriptions at the end of a purpose and outside the usual course of prescribing and dispensing of controlled work day, and used the carried-over professional practice in Ohio.503 As substances is upon the prescribing script the following day for purposes of such, his prescription practice regarding practitioner’’ while the ‘‘corresponding dispensing controlled substances. the three undercover agents during the responsibility’’ for filling the Accordingly, this is discussed under period after the twelfth week of prescription ‘‘rests with the Factor Five, but does not serve as a basis pharmacist.’’ 511 Thus, even if a treatment constitutes an additional basis for making an adverse finding under prescription for a controlled substance for finding his continued DEA Factor Four. is not filled, a practitioner may registration inconsistent with the public While I do not endorse the interest under Factor Four. nonetheless violate the Controlled Substances Act by issuing the Government’s assertion that it proved I note the Government also argues that prescription in the first place. Dr. Zaidi violated Ohio law regarding Respondent violated Ohio law by Respondent’s counsel also pointed prescribing to family members, I do find prescribing a controlled substance to his out, however, that Investigator Brinks substantial and persuasive evidence daughter.504 Ohio regulations state: did not ask whether the prescription establishing that Dr. Zaidi otherwise Accepted and prevailing standards of care was issued during an emergency.512 failed to comply with applicable state require that a physician maintain detached Without that information, or any other and federal laws relating to controlled professional judgment when utilizing evidence to support the Government’s substances, and that this failure controlled substances in the treatment of allegation, I am unable to conclude that warrants a finding that his continued family members.505 A physician shall utilize the evidence proves Dr. Zaidi violated DEA registration would be inconsistent controlled substances when treating a family Ohio law in issuing a controlled with the public interest under Factor member only in an emergency situation substance prescription to his daughter. Four. The Government also asserts that Dr. which shall be documented in the patient’s Factor Five record.506 Zaidi violated Ohio law by instituting a practice by which he would pre-sign Under Factor Five, after considering Ohio courts have stated that prescriptions at the beginning of a work the public interest in the context of the ‘‘utiliz[ing] controlled substances’’ day, leaving those prescriptions not first four factors, the Administrator will 507 includes ‘‘prescribing’’ them. needed on that day in storage, so that consider ‘‘other conduct which may Accordingly, if Dr. Zaidi prescribed they could be used the following day; threaten the public health and Vicodin, a Schedule III controlled and that he failed to require patient safety.’’ 518 Factor Five thus substance, to his daughter he violated addresses be included in each encompasses the universe of conduct 513 Ohio law. In attempting to prove this prescription. As the Government not expressly within the scope of the allegation, the Government did not, correctly points out, federal law first four factors, but ‘‘which creates a however, present a copy of the provides that ‘‘prescriptions for probable or possible threat (and not only prescription Dr. Zaidi allegedly gave to controlled substances shall be dated as an actual) threat to public health and his daughter, nor did it present, as an of, and signed on, the day when issued safety.’’ 519 Further, agency precedent alterntative, her patient chart. The and shall bear the full name and address has generally embraced the principle 514 Government also did not show whether of the patient ....’’ The evidence that any conduct that is properly the Dr. Zaidi prescribed Vicodin to his supports a finding that Dr. Zaidi’s office subject of Factor Five must have a nexus daughter in an emergency situation or practice included procedures that to controlled substances and the whether Dr. Zaidi noted the prescription would permit Kim Maniglia to receive underlying purposes of the Controlled in his daughter’s patient chart. The only pre-signed but otherwise blank Substances Act.520 evidence the Government has offered to prescriptions from Dr. Zaidi and retain support its allegation is the testimony of unused scripts for use the next business In its post-hearing brief, the Diversion Investigator Brinks. day.515 It also supports a finding that Dr. Government contends that Respondent Investigator Brinks interviewed Dr. Zaidi did not require controlled ‘‘instituted and maintained policies that 508 substance prescriptions to include a were contrary to Federal law’’ in two Zaidi ‘‘during the search warrants.’’ 521 Apparently, at that time, Dr. Zaidi patient’s address.516 Each of the respects under Factor Five. First, the admitted to Investigator Brinks that ‘‘in prescriptions in our record is for a Government posits that Dr. Zaidi controlled substance, and none include ‘‘advised [Kim] Maniglia that including 517 a patient address on a prescription for 501 Ohio Rev. Code § 4731.052. patient address information. Thus, 502 Ohio Admin. Code 4731–21–02. this evidence establishes a violation of controlled substances was not 503 21 CFR 1306.04(a). federal law relating to controlled necessary’’ and second, that he 504 Government’s Recommended Findings of Fact, substances, and serves as a basis for ‘‘maintained a policy by which Conclusions of Law[,] and Argument at 25. employees were forbidden from 505 ‘‘ ‘[F]amily member’ means a spouse, parent, 509 Id. at 619. contacting law enforcement officers in child, sibling or other individual in relation to 510 Id. at 620. the event they suspected patients were whom a physician’s personal or emotional 511 involvement may render that physician unable to 21 CFR 1306.04(a). exercise detached professional judgment in 512 Tr. at 620. 518 21 U.S.C. 823(f)(5). reaching diagnostic or therapeutic decisions.’’ Ohio 513 Government’s Proposed Findings of Fact, 519 Roni Dreszer, M.D., 76 FR 19434–01, 19434 Admin. Code 4731–11–08. Conclusions of Law[,] and Argument at 25–26. n.3 (DEA April 7, 2011). 506 Ohio Admin. Code 4731–11–08(B). 514 Id. (citing 21 CFR 1306.05(a)). 520 Terese, Inc., D/B/A Peach Orchard Drugs, 76 507 See, e.g., Harris v. State Med. Bd., 974 NE.2d 515 Tr. at 407. FR 46843–02, 46848 (DEA August 3, 2011). 207, 216 (Ohio Ct. App. 2012). 516 Id. at 429. 521 Government’s Findings of Fact, Conclusions of 508 Tr. at 618. 517 Gov’t Exs. Fifteen; Eighteen; & 21. Law[,] and Argument at 26.

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obtaining multiple prescriptions for privacy of ‘‘individually identifiable disclosed pursuant to laws that require controlled substances.’’ 522 health information.’’ 528 In 2001 the reporting of certain types of injuries or As a matter of procedure, I regard the Secretary issued the HIPAA Privacy in compliance with a court order, scope of Factor Five to be limited to Rule.529 The rule preempts most state warrant, subpoena (including a grand those portions of our record that do not laws affecting medical records to the jury subpoena) summons, or establish violations of federal law. extent that state laws contradict the administrative request.536 ‘‘Because section 823(f)(5) only Privacy Rule and are less stringent.530 Assuming, as I do, that Ms. Maniglia’s implicates ‘such other conduct,’ it Under the Rule, a covered entity 531 may testimony is accurate, I think a strong necessarily follows that conduct not use or disclose protected health argument can be made for the considered in Factors One through Four information without written proposition that Dr. Zaidi’s failure to may not ordinarily be considered at authorization from the individual or, correctly understand the law- 523 Factor Five.’’ Thus, if either office alternatively, the opportunity for the enforcement exceptions to HIPAA and policy violates any laws relating to individual to agree or object.532 to discuss with his staff the role law prescribing controlled substances, then However, there are situations in enforcement plays in preventing abuse it must be considered in the discussion which the covered entity may use or and diversion is important. If pain of Factor Four, rather than Factor Five. disclose protected health information management staff members observe Failing to put patient addresses on without the individual’s authorization evidence of doctor shopping or controlled substance prescriptions is a or agreement. These are situations diversion of prescribed narcotics, those violation of federal law and thus has where the entity is obligated by law to staff members should be familiar with been addressed in the Factor Four disclose information, where the steps they can and must take to alert the analysis. information is requested as part of a relevant authorities of possible illicit I am not, however persuaded that judicial or administrative proceeding, or sufficient evidence has been presented action. Dr. Zaidi is responsible for where the information is needed for ensuring that his staff understands the to conclude Dr. Zaidi ‘‘maintained a public health or safety purposes.533 For policy by which employees were practitioner’s role in preventing abuse example, covered entities may disclose and diversion of controlled substances. forbidden from contacting law protected health information to health enforcement’’ 524 when presented with The evidence tends to demonstrate Dr. oversight agencies, public health Zaidi failed to meet this responsibility questionable patient conduct. The authorities, and to courts or tribunals evidence does tend to establish that Ms. in the management of his medical engaged in judicial or administrative practice. Maniglia felt that laws regarding patient proceedings under circumstances To some extent, therefore, there is privacy prohibited her from reporting designed to insure that the information evidence that Dr. Zaidi’s management of patient activities to law enforcement is disclosed only to those who need to 525 his staff was materially deficient and authorities. know.534 was inconsistent with the public I have carefully reviewed Ms. There are also several circumstances interest. Maniglia’s testimony regarding the under which covered entities may reasons she felt constrained in reporting disclose protected health information to I cannot, however, agree with the suspicious behavior to law enforcement law enforcement agencies or officials.535 Government’s assertion that the personnel. Clearly the record indicates Protected health information may be evidence establishes Dr. Zaidi that Ms. Maniglia understood patient ‘‘maintained a policy by which privacy laws to be very broad in scope. 528 Health Insurance Portability and employees were forbidden from In her understanding of those laws, Ms. Accountability Act, Pub. L. 104–191, § 264, 110 Stat contacting law enforcement in the event Maniglia said, ‘‘I ha[ve] been in the field 1936 (1996). they suspected patients were obtaining for 20 years and we’re not allowed to 529 See 45 CFR parts 160 and 164. multiple prescriptions for controlled talk about any patient confidentiality The term ‘‘individually identifiable health substances from multiple doctors.’’ 537 I stuff.’’ 526 When asked, however, information’’ means any information, including demographic information collected from an found Ms. Maniglia’s testimony credible whether this understanding came from individual, that— throughout, including when she told me policies instituted by Dr. Zaidi, Ms. (A) is created or received by a health care she never talked with Dr. Zaidi about Maniglia was clear and consistent in provider, health plan, employer, or health care limits on disclosing confidential clearinghouse; and responding in the negative, saying ‘‘we information.538 I further found credible 527 (B) relates to the past, present, or future physical never talked about it.’’ her explanation that when she was Ms. Maniglia’s understanding about or mental health or condition of an individual, the provision of health care to an individual, or the interviewed by the DEA during the federal privacy laws as they pertain to past, present, or future payment for the provision execution of the warrant allowing the pain management clinics is of health care to an individual, and— search of Dr. Zaidi’s office, she was understandable. Federal law in this area (i) identifies the individual; or (ii) with respect to which there is a reasonable misunderstood. She denied telling the is complex and generally tends to interviewing officer that employees who restrict disclosure of medical records, as basis to believe that the information can be used to identify the individual. 42 U.S.C. 1320d. discovered evidence of doctor shopping Ms. Maniglia correctly stated. The 530 45 CFR 160.203-.204. were not allowed to report that to law Health Insurance Portability and 531 A covered entity is: ‘‘(1) A health plan. (2) A enforcement, explaining, ‘‘He Accountability Act of 1996 (HIPAA) health care clearinghouse. (3) A health care provider who transmits any health information in misunderstood me. I told him that was required the Secretary of Health and [] HIPAA, that we weren’t allowed to Human Services to create standards for electronic form in connection with a transaction covered by this subchapter.’’ 45 CFR 160.103; see discuss anything. . . . We were not also 45 CFR 164.104. The third category tends to 522 allowed to call. It was patient Id. include most healthcare providers since the 539 523 Joe W. Morgan, D.O., 78 FR 61961–01, 61977 regulation lists twelve common activities that confidentiality.’’ (DEA October 8, 2013). would subject healthcare providers to HIPAA’s 524 Government’s Proposed Findings of Fact, requirements. See 45 CFR 160.103. 536 Id. Conclusions of Law[,] and Argument at 26. 532 45 CFR 164.508, 164.510. 537 Government’s Proposed Findings of Fact, 525 Tr. at 411. 533 45 CFR 164.512. Conclusions of Law[,] and Argument at 26. 526 Id. at 412. 534 Id. 538 Tr. at 412. 527 Id. 535 Id. 539 Id. at 411.

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Accordingly, while I find insufficient without evidence of remediation or of 4. In the cases of Agent Parkison and evidence establishing that Dr. Zaidi an admission of fault. I cannot concur Detective Leonard, Respondent based established a policy prohibiting his staff with Respondent’s claim that ‘‘there is his prescription for controlled from reporting evidence of diversion or no evidence to suggest that Dr. Zaidi is substances on a diagnosis of lumbar abuse, I find his office practice generally a threat to the public interest.’’ 546 radiculitis, under conditions where the created a risk to the public safety in Evidence that Dr. Zaidi persistently patients’ examination and history did failing to properly train his staff misrepresented the extent of his not support such a diagnosis. regarding the role of law enforcement examination of the three undercover 5. In the case of Agent Moses, officers in detecting abuse and diversion agents is but one example of conduct Respondent based his prescription for of controlled substances. In this respect, that threatens the public interest. With controlled substances in part on the Government has met its burden of respect to remediation, Respondent diagnoses of limb pain, leg pain, and demonstrating that Dr. Zaidi’s asserted in his post-hearing brief that osteoarthritis, under conditions where continued DEA registration would be ‘‘[t]hrough his counsel during the the patient’s examination and history inconsistent with the public interest hearing in this matter, there is an did not support such diagnoses. under Factor Five. acknowledgment of areas Dr. Zaidi 6. After his initial examination of could improve. He would take each undercover officer, Respondent Evidence of Respondent’s Remediation appropriate corrective action to never performed physical examinations Once the Government has proved that eliminate those errors.’’ 547 I cannot find in subsequent office visits with these a registrant has committed acts from this representation any substantial patients, but nonetheless either inconsistent with the public interest, a evidence of either contrition or maintained or increased narcotic registrant must ‘‘present[] sufficient remediation. Accordingly, the prescriptions throughout the course of mitigating evidence to assure the Government’s prima facie case is treatment, generally based on no Administrator that [the registrant] can established, and the matter is presented objective medical findings but instead be entrusted with the responsibility to the Administrator without evidence based on requests by the undercover carried by such a registration.’’ 540 In that would compel any outcome other officers. addition, because ‘‘past performance is than the revocation of Dr. Zaidi’s DEA 7. In the case of each undercover the best predictor of future registration. officer, Respondent failed to complete performance,’’ 541 the Administrator and maintain accurate medical records repeatedly has held that where a Findings of Fact reflecting his examination of these registrant has committed acts 1. On October 8, 2013, the Deputy patients in that he reported exaggerated inconsistent with the public interest, the Administrator for the Drug Enforcement levels of pain; reported completing registrant must accept responsibility for Administration issued an order to show examinations that were never his or her actions and demonstrate that cause why the DEA should not revoke performed; falsely stated he had he or she will not engage in future its Certificate of Registration BA3842259 examined the patients to detect pupil misconduct.542 Further, ‘‘admitting issued to Syed Jawed Akhtar-Zaidi, response to light, range of motion in the fault’’ is ‘‘properly consider[ed]’’ by M.D., and should not deny any upper or lower extremities, chest and DEA to be an important factor in the application for renewal or modification heart sounds, abdominal tenderness, public interest determination.543 The of the same. That certificate authorizes and sensory and motor functions; and Administrator repeatedly has held that the distribution of controlled substances based his prescriptions for controlled the ‘‘registrant must accept out of an office located at 34055 Solon substances on these false examination responsibility for [his] actions and Road, Suite 201, Solon, Ohio 44139. The reports. demonstrate that [he] will not engage in order also immediately suspended this 8. In the case of each undercover future misconduct.’’ 544 ‘‘Once the DEA registration, under the authority officer, Respondent treated for pain for [G]overnment establishes a prima facie found in 21 CFR 1301.36(e) and a period exceeding twelve weeks, but case showing a practitioner has 1301.37(c). By its own terms, failed either before or after the twelfth committed acts which render his Respondent’s DEA registration will week to indicate in the patient’s medical registration inconsistent with the public expire on June 30, 2014. chart a diagnosis of chronic pain interest, the burden shifts to the 2. Between September 11, 2012, and (including signs, symptoms, and practitioner to show why his continued May 17, 2013, Respondent prescribed causes); failed to develop a registration would be consistent with controlled substances to three comprehensive assessment of the the public interest.’’ 545 undercover agents posing as patients. patient a description of the patient’s Here the Administrator must proceed The dates these prescriptions were response to treatment; failed to fully without testimony from Dr. Zaidi, and written; the name, dosage, and quantity document his periodic assessment and of the controlled substances prescribed; documentation of the patient’s 540 Medicine Shoppe—Jonesborough, 73 FR 364– and the identity of the agents who functional status, including the ability 01, 387 (DEA January 2, 2008) (quoting Samuel S. to engage in work or other purposeful Jackson, D.D.S., 72 FR 23848, 23853 (DEA May 1, received these prescriptions are 2007) (quoting Leo R. Miller, M.D., 53 FR 21931, accurately set forth in paragraphs 2a activities, the interference with 21932 (DEA June 10, 1988)). through 2c in the order to show activities of daily living, quality of 541 ALRA Labs, Inc., v. DEA, 54 F.3d 450, 452 (7th cause,548 and are incorporated by family life and social activities; failed to Cir. 1995). reference into this finding. fully document his periodic assessment 542 See Jackson, 72 FR at 23853; John H. Kennedy, and documentation of the patient’s M.D., 71 FR 35705–01, 35709 (DEA June 21, 2006); 3. In each of the prescriptions for Prince George Daniels, D.D.S., 60 FR 62884–01, controlled substances Respondent progress toward treatment objectives, 62887 (DEA December 7, 1995). issued to these agents identified in including the intended role of 543 Hoxie v. DEA, 419 F.3d 477, 483 (6th Cir. Finding of Fact Two, Respondent failed controlled substances within the overall 2005). to include the patient’s address. plan of treatment; and failed to fully 544 Medicine Shoppe—Jonesborough, 73 FR at document that he had addressed with 387. 545 MacKay v. DEA, 664 F.3d 808, 817 (10th Cir. 546 Post-Hearing Brief of Respondent at 19. the patient the risks associated with 2010) (citing Medicine Shoppe—Jonesborough, 73 547 Id. protracted treatment with controlled FR at 387). 548 ALJ Ex. One. substances, including informing the

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patient of the potential for dependence, apply when the staff members observe substances for persons presenting with tolerance, and addiction, and the behavior relating to controlled symptoms of chronic pain, the clinical or monitoring tools the substance abuse, misuse, or diversion. Government has met its burden of physician may use if signs of addiction, 13. Respondent has not provided proving Respondent’s continued DEA drug abuse, or drug diversion are substantial evidence that he has registration would be inconsistent with present. acknowledged any noncompliance with the public interest under Factor Two, 9. In the course of treating each of the controlled substance laws, nor that he warranting the revocation of that undercover officers, Respondent failed has undertaken efforts to avoid such registration and the denial of any to identify in his medical chart and noncompliance in the future. pending application for registration. resolve red flags indicating possible 5. In order to establish a basis for controlled substance abuse or diversion, Conclusions of Law revoking a Certificate of Registration including solicitation by the patient of 1. When it proposes to revoke a DEA based on the provisions of 21 U.S.C. specific narcotics by name as an initial Certificate of Registration or deny any 823(f)(3) (Factor Three), and assuming course of treatment, particularly where pending applications for such Factor Three applies to Respondent, the the named drugs were OxyContin, registration, the Government is required Government must present evidence of Percocet, or Opana, all of which are to establish by at least a preponderance Respondent’s conviction record under recognized as frequently diverted of the evidence that the holder’s federal or state laws relating to the narcotics; solicitation by the patient of continued registration is inconsistent manufacture, distribution, or dispensing increasing amounts of narcotic with the public interest. of controlled substances. As this Factor medication or changes in name-brand 2. Five factors must be considered is neither alleged by the Government narcotics without objective medical when determining the public interest in nor suggested by the evidence, this reasons justifying the change; a patient this case: Factor may not be considered to support presenting to the medical office without (1) The recommendation of the the revocation of Respondent’s current a government-issued identity card that appropriate state licensing board or DEA registration or deny any pending included the patient’s current address; a professional disciplinary authority. application for registration. patient’s use of medication provided by (2) The applicant’s experience in 6. Under 21 U.S.C. 823(f)(4) (Factor non-authorized sources such as a family dispensing, or conducting research with Four), the Administrator is to consider member; and persistent patient respect to controlled substances. the Respondent’s compliance with noncompliance with orders for MRI- (3) The applicant’s conviction record applicable state, federal, or local laws based studies and refusal to consider under federal or state laws relating to relating to controlled substances. non-narcotic treatments including the manufacture, distribution, or 7. Federal law relating to controlled cortisone injections. dispensing of controlled substances. substances includes the requirement 10. Contemporaneous to the execution (4) Compliance with applicable state, that prescriptions for controlled of a search warrant of Respondent’s federal, or local laws relating to substances include the patient’s premises, Respondent told DEA agents controlled substances. address.550 Where the Government he had prescribed Vicodin to his (5) Such other conduct which may establishes by at least a preponderance daughter. There is, however, no copy of threaten the public health and safety.549 of the evidence, as is the case here, that the prescription nor any evidence that 3. Under 21 U.S.C. 823(f)(1) (Factor Respondent issued prescriptions for would permit a determination of the One), as is the case here, where the controlled substances that did not circumstances under which this record is silent with respect to the include any patient address controlled substance was prescribed, recommendation of the appropriate state information, the Government has met its including whether such treatment was licensing board or professional burden of establishing Respondent’s provided in an emergency situation. disciplinary authority, Factor One noncompliance with applicable federal 11. Included in Respondent’s neither supports nor contradicts a law relating to controlled substances, prescription practice was a protocol by finding that Respondent’s continued and thereby has met its burden of which he would pre-sign prescriptions, DEA registration is inconsistent with the demonstrating that Respondent’s many of which were used to prescribe public interest. continued DEA registration would be controlled substances. The supply of 4. In order to establish a basis for inconsistent with the public interest pre-signed prescriptions would not revoking a Certificate of Registration under Factor Four. always be exhausted at the end of the based on the provisions of 21 U.S.C. 8. Federal law relating to controlled day, and remaining prescriptions would 823(f)(2) (Factor Two), and assuming substances include the requirement that be used the following day. There is, Factor Two applies to Respondent, the all prescriptions for controlled however, insufficient evidence Government must present preponderant substances must be for a legitimate permitting a finding that any left-over evidence establishing that the medical purpose and must be issued in prescriptions were used for prescribing experience of Respondent in dispensing the ordinary course of a professional controlled substances on a day other controlled substances is of such medical practice.551 Ohio law includes than the day the prescription was character and quality that his continued the requirement that prescriptions for issued. registration is inconsistent with the controlled substances must be for legal 12. Respondent was the physician in public interest. Upon the and legitimate therapeutic purposes.552 charge of and the only authorized determinations appearing in Finding of A preponderance of the evidence prescribing source at his pain Fact Number Nine (above), where a establishes that Respondent issued management clinic. In training his preponderance of the evidence controlled substance prescriptions for clinical staff, Respondent did not establishes that Respondent the three undercover agents described require those who assisted in filling out demonstrated a material lack of insight controlled substance prescriptions to and experience regarding a prescribing 550 21 CFR 1306.05(a). include patient addresses on the source’s responsibilities to resolve red 551 Sun & Lake Pharmacy, 76 FR 24523–02, 24530 (DEA May 2, 2011) (quoting 21 CFR 1306.04(a)); prescription. Further, he did not flags when prescribing controlled George C. Aycock, M.D., 74 FR 17529–01, 17541 provide training to his staff regarding (DEA April 15, 2009). exceptions to patient privacy laws that 549 21 U.S.C. 823(f). 552 Ohio Rev. Code § 4731.22(B)(3).

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herein without first resolving red flags undercover officers presented before functions; a review of previous identified in Finding of Fact Nine Respondent with symptoms of chronic diagnostic studies and previously (above), in a manner that was not in the pain. In these cases, Ohio law requires utilized therapies; an assessment of ordinary course of professional medical the physician to include in the patient’s coexisting illnesses, diseases, or practice and not for legitimate medical charts a written diagnosis of conditions; and an appropriate physical therapeutic purposes. A preponderance chronic pain; a plan of treatment that examination.558 Those standards also of the evidence further establishes that includes documentation that other more generally require a medical Respondent issued controlled substance medically reasonable treatments for diagnosis documented in the patient’s prescriptions based on diagnoses of relief of the pain have been offered or medical record that indicates not only radiculitis (with respect to Agent attempted without adequate or the presence of intractable pain but also Parkison and Detective Leonard) and reasonable success; periodic the signs, symptoms, and causes and, if limb pain (with respect to Agent Moses) assessments and documentation of the determinable, the nature of the where the objective findings taken patient’s functional status, including the underlying disease and pain together with the examinations and ability to engage in work or other mechanism; and an individualized histories obtained by Respondent do not purposeful activities, the pain intensity treatment plan formulated and support such diagnoses. Upon such and its interference with activities of documented in the patient’s medical evidence, the Government has met its daily living, quality of family life and record specifying the medical burden of establishing these social activities and the patient’s justification of the treatment of prescriptions were not for a legitimate physical activities; and periodic intractable pain by utilizing prescription medical or therapeutic purpose and documentation of progress towards drugs, the intended role of prescription were not written in the ordinary course treatment objectives.555 Where a drug therapy within the overall plan, of Respondent’s professional practice, preponderance of the evidence and, when applicable, documentation and has established Respondent’s establishes that Respondent failed to that other medically reasonable noncompliance with applicable federal comply with the requirements of Ohio treatments for relief of the patient’s and state law relating to controlled law applicable to the treatment of intractable pain have been offered or substances. Accordingly, the chronic pain, on the facts set forth in attempted without adequate or Government has met its burden of Finding of Fact Eight (above), the reasonable success.559 Where a demonstrating that Respondent’s Government has met its burden of preponderance of the evidence continued DEA registration would be establishing Respondent’s establishes that Respondent failed to inconsistent with the public interest noncompliance with applicable state comply with the requirements of Ohio under Factor Four. law relating to controlled substances, law for the treatment of intractable pain, 9. Ohio law includes the requirement and thereby has met its burden of as set forth in Finding of Fact Eight that when prescribing controlled demonstrating that Respondent’s (above), the Government has met its substances for pain, the prescribing continued DEA registration would be burden of establishing Respondent’s source ‘‘shall complete and maintain inconsistent with the public interest noncompliance with applicable state accurate medical records reflecting the under Factor Four. law relating to controlled substances, physician’s examination, evaluation, 11. Ohio law provides that and thereby has met its burden of and treatment of all the physician’s ‘‘intractable pain’’ is ‘‘pain that is demonstrating that Respondent’s patients.’’ 553 A preponderance of the determined, after reasonable medical continued DEA registration would be evidence establishes that when efforts have been made to relieve the inconsistent with the public interest Respondent issued controlled substance pain or cure its cause, to have a cause under Factor Four. prescriptions for the three undercover for which no treatment or cure is 12. Ohio law permits a physician to agents described herein, he did so based possible or for which none has been utilize controlled substances when on records that falsely reported the found.’’ 556 It further provides that treating a family member only in an extent and nature of his examination of specific practice standards apply when emergency situation, and requires the the patients and falsely reported the utilizing any prescription drug for the emergency situation to be documented patients’ reports of pain, as enumerated treatment of intractable pain on a in the patient’s medical record.560 While in Finding of Fact Seven (above). Upon protracted basis, defining ‘‘protracted there is some evidence in our record such evidence, the Government has met basis’’ as a period in excess of twelve indicating Respondent prescribed a its burden of establishing Respondent’s continuous weeks.557 Where, as here, controlled substance for his daughter, noncompliance with applicable state the evidence establishes by at least a the record does not include the patient’s law relating to controlled substances, preponderance that Respondent treated medical record, the prescription, nor and thereby has met its burden of each of the three undercover agents as sufficient circumstantial facts that demonstrating that Respondent’s though there were no cure possible for would warrant concluding that continued DEA registration would be periods exceeding twelve weeks, Ohio Respondent violated Ohio law regarding inconsistent with the public interest law required that he conform to those prescribing controlled substances to under Factor Four. practice standards applicable in the family members. 10. Ohio law defines ‘‘chronic pain’’ treatment of intractable pain. Those 13. Under 21 U.S.C. 823(f)(5) (Factor as pain that ‘‘has persisted after standards applicable at the initial Five), the Administrator is to consider, reasonable medical efforts have been evaluation include reporting the ‘‘Such other conduct which may made to relieve the pain or cure its patient’s complete medical, pain, threaten the public health and safety.’’ cause and that has continued, either alcohol and substance abuse histories; Respondent’s actions or omissions that continuously or episodically, for longer an assessment of the impact of pain on threaten the public interest may 554 than three continuous months.’’ A the patient’s physical and psychological constitute a basis for revoking a DEA preponderance of the evidence registration under Factor Five, where establishes that each of the three 555 Ohio Rev. Code § 4731.052(D). 556 Ohio Admin. Code 4731–21–01(G). 558 Ohio Admin. Code 4731–21–01(A)(1). 553 Ohio Admin. Code 4731–11–02(D). 557 Ohio Admin. Code 4731–21–01(L); Ohio 559 Ohio Admin. Code 4731–21–02(A)(2)–(3). 554 Ohio Rev. Code § 4731.052(A)(1). Admin. Code 4731–21–02. 560 Ohio Admin. Code 4731–11–08(B).

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the conduct is not within the scope of used for controlled substance has not provided substantial evidence Factors One through Four.561 Where by prescriptions on days other than the that he has acknowledged any at least a preponderance of the evidence date signed, there is insufficient noncompliance with controlled the Government establishes, as is the evidence to establish a violation of this substance laws, nor that he has case here, that Respondent failed to law. While such evidence does not undertaken efforts to avoid such provide training to his staff regarding establish a violation of law so as to fall noncompliance in the future, exceptions to patient privacy laws that within the scope of Factor Four, it does Respondent has failed to rebut the apply when staff members observe demonstrate an office practice that Government’s prima facie case. behavior relating to controlled constitutes a threat to the public substance abuse, misuse, or diversion, interest. Accordingly, by this evidence Recommendation the Government has met its burden of the Government has met its burden of demonstrating that Respondent’s demonstrating that Respondent’s As the Government has established its continued DEA registration would be continued DEA registration would be prima facie case by at least a inconsistent with the public interest inconsistent with the public interest preponderance of the evidence that under Factor Five. under Factor Five. Respondent’s continued DEA 14. Federal law requires prescriptions 15. When responding to the registration would be inconsistent with for controlled substances be signed on Government’s prima facie case the public interest, and as Respondent the date the prescription is issued.562 establishing cause to find Respondent’s has failed to rebut that case through a Under this law, an office practice in continued DEA registration inconsistent demonstration of sufficient remediation, which Respondent signed but otherwise with the public interest, Respondent has Respondent’s DEA Certificate of left incomplete scripts in such quantity the opportunity to demonstrate that he Registration should be REVOKED and any as to make it possible for incomplete recognizes any noncompliance with pending application for the renewal or signed scripts to be used on a later day controlled substance laws and has taken modification of the same should be creates the potential for violating federal steps to ensure against future DENIED. 563 law. Without more, however, noncompliance. Where Respondent Dated: February 10, 2014. particularly without evidence Christopher B. Mcneil corroborating Ms. Maniglia’s testimony 563 Hoxie v. DEA, 419 F.3d 477, 482 (6th Cir. that left-over scripts may have been 2005); see also Morall v. DEA, 412 F.3d 165, 173– Administrative Law Judge 74 (D.C. Cir. 2005); MacKay v. DEA, 664 F.3d 808, 817 (10th Cir. 2010) (citing Medicine Shoppe— [FR Doc. 2015–17719 Filed 7–17–15; 8:45 am] 561 21 U.S.C. 823(f)(5). Jonesborough, 73 FRFR 364–01, 387 (DEA January BILLING CODE 4410–09–P 562 21 CFR 1306.05(a). 2, 2008)).

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Part IV

The President

Memorandum of June 19, 2015—Delegation of Authority Pursuant to Section 8 of the United States-Israel Strategic Partnership Act of 2014 Memorandum of June 25, 2015—Delegation of Authority To Transfer Certain Funds in Accordance With Section 610 of the Foreign Assistance Act of 1961 Executive Order 13700—Establishing an Emergency Board To Investigate Disputes Between New Jersey Transit Rail and Certain of Its Employees Represented by Certain Labor Organizations

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Federal Register Presidential Documents Vol. 80, No. 138

Monday, July 20, 2015

Title 3— Memorandum of June 19, 2015

The President Delegation of Authority Pursuant to Section 8 of the United States-Israel Strategic Partnership Act of 2014

Memorandum for the Secretary of State [and] the Secretary of Defense

By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 301 of title 3, United States Code, I hereby delegate the reporting requirement conferred upon the President by section 8 of the United States-Israel Strategic Partner- ship Act of 2014 (Public Law 113–296) to the Secretary of State. In carrying out the functions under this delegation, the Secretary of State shall consult with the Secretary of Defense and, as appropriate, other departments and agencies. The Secretary of State is authorized and directed to publish this memo- randum in the Federal Register.

THE WHITE HOUSE, Washington, June 19, 2015

[FR Doc. 2015–17922 Filed 7–17–15; 11:15 am] Billing code 4710–10

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Memorandum of June 25, 2015

Delegation of Authority To Transfer Certain Funds in Ac- cordance With Section 610 of the Foreign Assistance Act of 1961

Memorandum for the Secretary of State

By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 610 of the Foreign Assistance Act of 1961 (FAA) and section 301 of title 3, United States Code, I hereby delegate to you the authority, subject to fulfilling the require- ments of section 652 of the FAA and section 7009(d) of the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2014 (Division K, Public Law 113–76), and corresponding provisions of prior acts for Fiscal Years 2010–2012, to make the determination necessary for and to execute the transfer of $12,468,000 of Fiscal Year (FY) 2010 Inter- national Narcotics and Law Enforcement (INCLE) funds to the Economic Support Fund (ESF) account; $13,000,000 of FY 2011 INCLE funds to the ESF account; $2,032,000 of FY 2014 INCLE-Overseas Contingency Operations (OCO) funds to the ESF–OCO account; and $39,300,000 in FY 2014 Foreign Military Financing–OCO funds to the ESF–OCO account. You are authorized and directed to publish this memorandum in the Federal Register.

THE WHITE HOUSE, Washington, June 25, 2015

[FR Doc. 2015–17925 Filed 7–17–15; 11:15 am] Billing code 4710–10

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Executive Order 13700 of July 15, 2015

Establishing an Emergency Board To Investigate Disputes Be- tween New Jersey Transit Rail and Certain of Its Employees Represented by Certain Labor Organizations

Disputes exist between New Jersey Transit Rail and certain of its employees represented by certain labor organizations. The labor organizations involved in these disputes are designated on the attached list, which is made part of this order. The disputes have not heretofore been adjusted under the provisions of the Railway Labor Act, as amended, 45 U.S.C. 151–188 (RLA). A party empowered by the RLA has requested that the President establish an emergency board pursuant to section 9A of the RLA (45 U.S.C. 159a). Section 9A(c) of the RLA provides that the President, upon such request, shall appoint an emergency board to investigate and report on the disputes. NOW, THEREFORE, by the authority vested in me as President by the Constitution and the laws of the United States, including section 9A of the RLA, it is hereby ordered as follows: Section 1. Establishment of Emergency Board (Board). There is established, effective 12:01 a.m. eastern daylight time on July 16, 2015, a Board of three members to be appointed by the President to investigate and report on these disputes. No member shall be pecuniarily or otherwise interested in any organization of employees or any carrier. The Board shall perform its functions subject to the availability of funds. Sec. 2. Report. The Board shall report to the President with respect to the disputes within 30 days of its creation. Sec. 3. Maintaining Conditions. As provided by section 9A(c) of the RLA, for 120 days from the date of the creation of the Board, no change in the conditions out of which the disputes arose shall be made by the parties to the controversy, except by agreement of the parties. Sec. 4. Records Maintenance. The records and files of the Board are records of the Office of the President and upon the Board’s termination shall be maintained in the physical custody of the National Mediation Board.

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Sec. 5. Expiration. The Board shall terminate upon the submission of the report provided for in section 2 of this order.

THE WHITE HOUSE, July 15, 2015.

Billing code 3295–F5–P

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LABOR ORGANIZATIONS

International Brotherhood·of Electrical Workers Transportation Communications International Union/IAM Brotherhood of Locomotive Engineers and Trainmen

International Association of Sheet Metal/ Air 1 Rail and Transportation Workers - Transportation Division (UTU) International Association of Machinists & Aerospace Workers Brotherhood of Railroad Signalmen National Conference of Firemen & Oilers/ SEIU

International Association of Sheet Metal 1 Air, Rail and Transportation Workers American Train Dispatchers Association Brotherhood of Maintenance of Way Employes Division International Brotherhood of Boilermakers Transport Workers Union of America

[FR Doc. 2015–17926

Filed 7–17–15; 11:15 am] Billing code 7550–01–C

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Reader Aids Federal Register Vol. 80, No. 138 Monday, July 20, 2015

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING JULY

Federal Register/Code of Federal Regulations At the end of each month the Office of the Federal Register General Information, indexes and other finding 202–741–6000 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since Laws 741–6000 the revision date of each title. 600...... 40896 Presidential Documents 3 CFR Executive orders and proclamations 741–6000 Proposed Rules: Proclamations: Ch. I ...... 39390 The United States Government Manual 741–6000 9297...... 41969 Ch. II ...... 39390 Other Services 9298...... 41975 Ch. III ...... 39390 Electronic and on-line services (voice) 741–6020 9299...... 41983 327...... 40838 Privacy Act Compilation 741–6064 Executive Orders: 701...... 37898 Public Laws Update Service (numbers, dates, etc.) 741–6043 13699...... 37529 723...... 37898 13700...... 43003 TTY for the deaf-and-hard-of-hearing 741–6086 741...... 37898 Administrative Orders: Memorandums: 14 CFR ELECTRONIC RESEARCH Memorandum of June 33...... 38913 19, 2015 ...... 42999 39 ...... 38391, 38613, 38615, World Wide Web Memorandum of June 38617, 39941, 39943, 40897, Full text of the daily Federal Register, CFR and other publications 25, 2015 ...... 43001 40899, 42005, 42007, 42010, is located at: www.fdsys.gov. Memorandum of June 42012, 42014, 42018, 42373, 29, 2015 ...... 37921 42707 Federal Register information and research tools, including Public 71...... 42020, 42708 Inspection List, indexes, and Code of Federal Regulations are 5 CFR 91...... 42021 located at: www.ofr.gov. 532...... 40895 97 ...... 42022, 42023, 42025, E-mail Proposed Rules: 42026 1600...... 39974 1245...... 42028 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 1601...... 39974 1262...... 42028 an open e-mail service that provides subscribers with a digital 1651...... 39974 1263...... 42028 form of the Federal Register Table of Contents. The digital form 1653...... 39975 1264...... 42028 of the Federal Register Table of Contents includes HTML and Ch. XXII ...... 38019 1266...... 42028 PDF links to the full text of each document. Proposed Rules: To join or leave, go to http://listserv.access.gpo.gov and select 7 CFR Ch. 1 ...... 41447 Online mailing list archives, FEDREGTOC-L, Join or leave the list 718...... 41987 25...... 42753 (or change settings); then follow the instructions. 929...... 37531 39 ...... 38033, 38036, 38038, 932...... 37533 38406, 38408, 38656, 38990, PENS (Public Law Electronic Notification Service) is an e-mail 38992, 39392, 39394, 40942, service that notifies subscribers of recently enacted laws. 1410...... 41987 4279...... 39377 40947, 40949, 42756 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 4287...... 39377 71 ...... 42068, 42434, 42436, and select Join or leave the list (or change settings); then follow 42760 Proposed Rules: the instructions. 73...... 42761 271...... 41442 FEDREGTOC-L and PENS are mailing lists only. We cannot 274...... 41442 15 CFR respond to specific inquiries. 278...... 41442 702...... 41426 Reference questions. Send questions and comments about the 986...... 38021 736...... 39950 Federal Register system to: [email protected] 1211...... 37555 740...... 39950 The Federal Register staff cannot interpret specific documents or 9 CFR 744...... 39950 regulations. 748...... 39950 94...... 37923, 37935 774...... 39950 CFR Checklist. Effective January 1, 2009, the CFR Checklist no 112...... 39669 longer appears in the Federal Register. This information can be 16 CFR found online at http://bookstore.gpo.gov/. 10 CFR 700...... 42710 430...... 37953, 37954 701...... 42710 FEDERAL REGISTER PAGES AND DATE, JULY 431...... 42614 703...... 42710 Proposed Rules: 1251...... 42376 37529–37920...... 1 50...... 42067 37921–38390...... 2 Proposed Rules: Ch. II ...... 38019 313...... 38410 38391–38612...... 6 Ch. III ...... 38019 1112...... 38041 38613–38912...... 7 429 ...... 39486, 39644, 42434 1233...... 38041 38913–39376...... 8 430...... 39644, 40938 1251...... 42438 39377–39668...... 9 431...... 38032, 39486 39669–39940...... 10 Ch. IX...... 38019 17 CFR 39941–40894...... 13 1703...... 39389 200...... 41432 40895–41408...... 14 231...... 37536 41409–41986...... 15 12 CFR 232...... 37537 41987–42372...... 16 3...... 41409 241...... 37536 42373–42706...... 17 217...... 41409 271...... 37536 42707–43006...... 20 324...... 41409 275...... 37538

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276...... 37536 269...... 39377 26 CFR 3020...... 42723 Proposed Rules: 270...... 39377 1...... 38940, 38941 Proposed Rules: 23...... 41376 271...... 39377 54...... 41318 957...... 37565 229...... 41144 272...... 39377 961...... 37567 273...... 39377 Proposed Rules: 240...... 38995, 41144 1...... 39397, 42439 966...... 37567 249...... 41144 274...... 39377 275...... 39377 301...... 39397 40 CFR 274...... 41144 602...... 39397 275...... 38050 276...... 39377 52 ...... 37985, 38400, 38403, 279...... 38050 277...... 39377 27 CFR 38625, 38951, 38959, 38966, 278...... 39377 38969, 39696, 39961, 39966, Proposed Rules: 18 CFR 279...... 39377 39968, 39970, 40905, 40909, 9...... 38147 Proposed Rules: 280...... 39377 40911, 40913, 40915, 40917, 35...... 41449 281...... 39377 28 CFR 42042, 42044, 42046, 42050, 284...... 39719 282...... 39377 527...... 38620 42393, 42726, 42727, 42730, 342...... 39010 283...... 39377 571...... 38622 42733 284...... 39377 60...... 38628, 42397 19 CFR 285...... 39377 Proposed Rules: 70...... 40922 201...... 39377 286...... 39377 506...... 38658 80...... 38284 206...... 39377 287...... 39377 810...... 39400 81 ...... 39970, 42046, 42050 288...... 39377 208...... 39377 29 CFR 82...... 42053, 42870 213...... 39377 289...... 39377 180 ...... 37547, 38976, 38981, 214...... 39377 290...... 39377 18...... 37539 42397, 42400 215...... 39377 291...... 39377 2519...... 41318 257...... 37988 216...... 39377 292...... 39377 2590...... 41318 261...... 42735 217...... 39377 293...... 39377 4022...... 41436 262...... 37992 218...... 39377 294...... 39377 Proposed Rules: 280...... 41566 295...... 39377 219...... 39377 541...... 38516 281...... 41566 296...... 39377 220...... 39377 720...... 42739 297...... 39377 31 CFR 221...... 39377 721...... 42739 298...... 39377 222...... 39377 591...... 39676 723...... 42739 299...... 39377 223...... 39377 Proposed Rules: 725...... 42739 224...... 39377 20 CFR 22...... 39977 761...... 37994 315...... 37539 225...... 39377 404...... 37970 Proposed Rules: 353...... 37539 226...... 39377 416...... 37970 9...... 40138 227...... 39377 360...... 37539 22...... 40138 228...... 39377 21 CFR 52 ...... 38152, 38419, 38423, 32 CFR 229...... 39377 11...... 39675 39020, 40952, 40954, 40955, 230...... 39377 16...... 42723 323...... 39381 41449, 41450, 42075, 42076, 231...... 39377 42443, 42446, 42459, 42763, 20...... 38915 33 CFR 232...... 39377 101...... 39675 42765, 42774, 42777 233...... 39377 161...... 41436 100 ...... 38394, 38397, 39382, 85...... 40138 234...... 39377 310...... 38915 42030, 42032 86...... 40138 235...... 39377 314...... 38915 117 ...... 39382, 39383, 39683 87...... 37758 236...... 39377 600...... 38915 147...... 40903, 42385 174...... 42462 237...... 39377 601...... 37971 165 ...... 37540, 37542, 37545, 600...... 40138 238...... 39377 610...... 37971 37976, 37978, 37980, 37982, 704...... 38153 239...... 39377 680...... 37971 38623, 38941, 38943, 38944, 1033...... 40138 240...... 39377 1308...... 42381 38946, 39383, 39384, 39386, 1036...... 40138 39686, 39688, 39689, 39691, 241...... 39377 Proposed Rules: 1037...... 40138 242...... 39377 573...... 42069 39694, 39957, 39960, 39961, 1039...... 40138 243...... 39377 601...... 38145 42034, 42036, 42037, 42038, 1042...... 40138 244...... 39377 1100...... 37555 42388 1043...... 40138 245...... 39377 1140...... 37555 Proposed Rules: 1065...... 40138 246...... 39377 1143...... 37555 100...... 42069 1066...... 40138 247...... 39377 117...... 38417 1068...... 37758, 40138 248...... 39377 22 CFR 165 ...... 37562, 39400, 39403, 41 CFR 249...... 39377 121...... 37974 42072, 42440 250...... 39377 301...... 37995 Proposed Rules: 34 CFR 251...... 39377 171...... 40951 302...... 37995 252...... 39377 Proposed Rules: 303...... 37995 253...... 39377 23 CFR 668...... 39608 304...... 37995 254...... 39377 650...... 41350 682...... 39608 305...... 37995 255...... 39377 685...... 39608 306...... 37995 256...... 39377 24 CFR 307...... 37995 36 CFR 257...... 39377 5...... 42272 308...... 37995 258...... 39377 91...... 42272 Proposed Rules: 309...... 37995 259...... 39377 92...... 42272 7...... 39985 310...... 37995 260...... 39377 570...... 42272 13...... 39988 Proposed Rules: 261...... 39377 574...... 42272 102–177...... 39719 262...... 39377 576...... 42272 38 CFR 42 CFR 263...... 39377 903...... 42272 4...... 42040 264...... 39377 Proposed Rules: Proposed Rules: 480...... 40923 265...... 39377 203...... 38410 4...... 39011 482...... 40923 266...... 39377 Proposed Rules: 267...... 39377 25 CFR 39 CFR 73...... 42079 268...... 39377 83...... 37538, 37862 501...... 42392 88...... 39720

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405...... 41686, 42168 46 CFR 48 CFR 195...... 39916 409...... 39840 503...... 37997 Ch. 1...... 38292, 38313 199...... 39916 410...... 39200, 41686 Proposed Rules: 1 ...... 38293, 38306, 40968 512...... 40138 411...... 41686 501...... 38153 2...... 38293 523...... 40138 412...... 39200 502...... 38153 3...... 38293 534...... 40138 413...... 37808 4...... 38293, 40968 535...... 40138 414...... 41686 47 CFR 5...... 38307 537...... 40138 416...... 39200 1...... 38653, 38812 6...... 38293 538...... 40138 419...... 39200 2...... 38812 7...... 38293 1201...... 39021 424...... 39840 15...... 37551 8...... 38293, 40968 1241...... 39045 425...... 41686 17...... 37552 9...... 38293, 38309 1242...... 39045 431...... 42168 20...... 38653 10...... 38293 1243...... 39045 447...... 42168 25...... 38812 12...... 38293, 38311 1244...... 39045 482...... 42168 27...... 38812 13...... 38293, 38311 1245...... 39045 483...... 42168 54...... 40923 15...... 38293, 38312 1246...... 39045 484...... 39840 74...... 38812 16...... 38293 1247...... 39045 485...... 42168 76...... 38001 17...... 38293, 40968 1248...... 39045 488...... 42168 78...... 38812 18...... 38311 495...... 41686 79...... 39698 19...... 38293 50 CFR 510...... 41198 80...... 38812 22 ...... 38293, 38307, 40968 87...... 38812 25...... 38293 21...... 38013 43 CFR 90...... 38812 28...... 38293 300...... 38986 Proposed Rules: 97...... 38812 30...... 38293 622 ...... 38015, 39715, 40936, 47...... 39991 101...... 38812 42...... 38293 42423 48...... 39991 Proposed Rules: 50...... 38293 635...... 38016 3160...... 40768 2...... 38316 52 ...... 38293, 38306, 38309, 648...... 42747 3170...... 40768 8...... 38424 38312, 40968 660...... 39716 15...... 38316 53...... 38293 679...... 38017 54...... 42670 Proposed Rules: 44 CFR 49 CFR 69...... 40956 17...... 37568 64...... 37996, 42404 73...... 38158, 40957 219...... 38654 219...... 39542 74...... 38158 390...... 37553 224...... 40969 45 CFR 79...... 39722 1002...... 41437 300...... 42464 101...... 42408 80...... 38316 Proposed Rules: 424...... 42465 147...... 41318 90...... 38316 190...... 39916 622...... 41472 155...... 38652 97...... 38316 191...... 39916 648...... 39731 1171...... 42066 101...... 38316 192...... 39916, 41460 679...... 39734, 40988

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in today’s List of Public enacted public laws. To Laws. subscribe, go to http:// LIST OF PUBLIC LAWS Public Laws Electronic listserv.gsa.gov/archives/ Last List July 9, 2015 Notification Service publaws-l.html (PENS) Note: No public bills which Note: This service is strictly have become law were for E-mail notification of new received by the Office of the PENS is a free electronic mail laws. The text of laws is not Federal Register for inclusion notification service of newly available through this service. PENS cannot respond to specific inquiries sent to this address.

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