Federal Register Vol. 80, No.230,

On December 19, 2014, OMB published a joint interim final rule in the Federal Register (79 FR 75871), Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards; Updating References. VA received no public comments and therefore makes no changes to the regulation. Based on the rationale set forth in the interim final rule, VA is adopting the interim final rule as a final rule with no changes.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 12866 (Regulatory Planning and Review) defines a “significant regulatory action,” which requires review by the Office of Management and Budget (OMB), unless OMB waives such review, as “any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.”

The economic, interagency, budgetary, legal, and policy implications of this regulatory action have been examined, and it has been determined not to be a significant regulatory action under Executive Orders 12866. VA's impact analysis can be found as a supporting document at http://www.regulations.gov, usually within 48 hours after the rulemaking document is published. Additionally, a copy of the rulemaking and its impact analysis are available on VA's Web site at http://www1.va.gov/orpm/, by following the link for “VA Regulations Published.”

The Regulatory Flexibility Act (RFA) requires an agency that is issuing a final rule to provide a final regulatory flexibility analysis or to certify that the rule will not have a significant economic impact on a substantial number of small entities. This final rule implements OMB final guidance issued on December 26, 2013, and will not have a significant economic impact beyond the impact of the December 2013 guidance.

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This final rule will have no such effect on State, local, and tribal governments, or on the private sector.

This final rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

The Catalog of Federal Domestic Assistance numbers and titles for the programs affected by this document are 64.005, Grants to States for Construction of State Home Facilities; 64.024, VA Homeless Providers Grant and Per Diem Program; 64.026, Veterans State Adult Day Health Care; 64.033, VA Supportive Services for Veteran Families Program; 64.034, VA Assistance to United States Paralympic Integrated Adaptive Sports Program; 64.037, VA U.S. Paralympics Monthly Assistance Allowance Program; 64.038, Grants for the Rural Veterans Coordination Pilot; 64.100, Automobiles and Adaptive Equip for Certain Disabled Vets and Members of the Armed Forces; 64.201, National Cemeteries; and 64.203, State Cemetery Grants.

The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Robert L. Nabors II, Chief of Staff, Department of Veterans Affairs, approved this document on November 18, 2015, for publication.

Microbial-based agriculture and biotechnology rely on superior production strains, new strains with novel characteristics, and reference strains for comparative purposes. Such strains are often difficult to acquire or are cost prohibitive for many researchers. ARS has a staff dedicated to the acquisition and distribution of microbial germplasm in which patented strains can be deposited in and distributed from its Patent Culture Collection for a one-time fee to cover maintenance and distribution costs.

ARS' Patent Culture Collection receives about 120 patent deposits per year, and distributes about 450 cultures per year. Nearly all of the accessions and distributions are requested by companies, universities, or Government agencies. Currently, ARS charges $500 for each microbial culture deposit, as set forth in 7 CFR 504.2(a). For each microbial culture distribution ARS charges $20, as set forth in 7 CFR 504.2(b). The current fees, which were established in 1985, did not reflect the actual costs of providing materials and services. ARS is increasing these fees to reflect their actual costs of $670 and $40, respectively, and to apply the distribution fee to all patent deposits regardless of the date of the deposit.

Currently, payment for deposit and requisition of microbial cultures is made by check, draft, or money order payable to the USDA, National Finance Center, as set forth in 7 CFR 504.3(b). ARS is adding pay.gov as a method of payment to assist customers.

The increased fees will enable ARS' Patent Culture Collection to continue its mission of supporting microbiological research and biotechnological innovation, and serve as a repository where patented microbial strains can be deposited and distributed to the scientific community. All of the current services will continue to be offered under the revised fee schedule and method of payment.

This rule was published as a proposed rule for comment on September 2, 2015. See 80 FR 53021, September 2, 2015. No comments were received.

For reasons set forth in the preamble, ARS amends 7 CFR part 504 as set forth below:

The HFIL Loan Program is authorized by the section 5402 of the 2014 Farm Bill (Pub. L. 113-79), which amended 25 U.S.C. 488 to allow the Secretary to make and insure loans to intermediary lenders to establish revolving loan funds for the purchase of HFIL. FSA will loan funds to intermediary lenders, who will facilitate the purchase and consolidation of fractionated interest by relending the funds to qualified tribes, individuals, and entities. FSA is adding 7 CFR part 769 to specify the requirements for the HFIL Loan Program. The rule provides a way for tribes and tribal members to obtain loans to purchase fractionated interests via intermediary lenders. The intermediary lenders will work with the U.S. Department of Interior's Bureau of Indian Affairs (BIA) on the processes and procedures needed for the ultimate recipients to resolve the undivided interests in the fractionated land. FSA will provide a long term loan to the intermediary lender and will review their reports and agreement to provide oversight of the lender's loan process and procedure; FSA will not provide oversight for the ultimate recipients.

As a result of the General Allotment Act of 1887 (also commonly known as the Dawes Act), Indian reservation land was allotted to individual tribal members. When an allottee died, title ownership was divided among his or her heirs, but the land itself was not partitioned and, as such, each Indian heir received an undivided interest in the land. As each generation passes, the number of owners grows exponentially. This has resulted in the highly fractionated ownership of much of the nation's Indian land. As ownership of Indian land descends from one generation to another, the long standing problem of fractionation continues to worsen as many tracts are owned by hundreds or even thousands of individuals. The ability of the owners to use land decreases as fractionation increases, sometimes to the point where it is nearly impossible to locate the owners or for the known owners to coordinate the use of the property. The HFIL Loan Program will help encourage intermediary lenders to provide loans to individual tribal members in order to resolve the highly fractionated ownership of land.

To ensure the HFIL Loan Program would have the greatest chance of success, FSA held a Tribal Consultation session on December 10, 2014. Recommendations on issues discussed during the Tribal Consultation have been addressed in this rule.

Some definitions in this rule originate from other already established laws and regulations and are used here for consistency. Indian Country uses the definition in 18 U.S.C. 1151. “Native American Tribe” and “Tribal Entity” definitions are consistent with 7 U.S.C. 770, “Indian Tribal Land Acquisition Program.” HFIL will be defined as undivided interests held by four or more individuals. The definition in 25 U.S.C. 2201 defines highly fractionated as 50 or more undivided owners. A less constraining definition is needed for this rule in order for the HFIL Loan Program to effectively meet the objectives of consolidating fractionated interests. Tribal Consultation indicated that not all fractionated parcels have 50 or more owners and using the strict definition could exclude the parcels from the HFIL Loan Program.

In addition, § 761.2 needs to be revised to specify that the products of tree farming and the products of other plant and animal production are agricultural commodities. Therefore, this rule also revises the definition of “Agricultural Commodity” in § 761.2 as a conforming change. The intention of the list of items that are considered agricultural commodities has not changed; it is strictly correcting the language in the definition.

Through Tribal Consultation, it became apparent to FSA that the most important characteristics of an intermediary lender are the knowledge and familiarity of working with Indian Country and experience working with BIA. The list of entities in § 769.103 should be flexible enough to include any qualifying entity interested in participating in the HFIL Loan Program.

FSA will develop guidelines for and provide loan funds to the intermediary lenders, who will facilitate the purchase and consolidation of fractionated interest by relending the funds to qualified tribes, individuals, and entities. FSA will establish criteria in § 769.103(b) and (c) for the intermediary lender that will be tied to the organization's demonstrated skills, ability, and knowledge of working with Indian land. The intermediary lender will establish eligibility criteria for the ultimate recipient as restricted by this rule in § 769.104.

An ultimate recipient is an entity or individual that receives a loan from an intermediary's HFIL revolving fund. The eligibility requirements of the ultimate recipient in § 769.104 are restrictive because this program is limited by the provisions of the 2014 Farm Bill; therefore, only Tribes, individual Tribal members, and Tribal entities are eligible to apply. In addition, the 2014 Farm Bill authorizes the HFIL Loan Program under 25 U.S.C. 488 rather than the Consolidated Farm and Rural Development Act (CONACT, 7 U.S.C. 1911-2008r) where most FSA loan programs are authorized. Accordingly, the FSA loan is to the intermediary lender as authorized under 25 U.S.C. 488 and the CONACT requirements regarding credit elsewhere and maximum loan amounts which typically apply to applicants of the FSA Farm Loan Programs do not apply to the intermediary or the ultimate recipient.

The purposes of the HFIL Loan Program are very specific and funds can only be used for the purchase of HFIL and related expenses as specified in §§ 769.105 and 769.106.

The HFIL Loan Program is subject to environmental compliance provisions specified in 7 CFR part 1940, subpart G. Accordingly, each intermediary lender will provide FSA with documentation of its process to address environmental issues on the land to be purchased.

The Tribal Consultation resulted in the strong recommendation that the ultimate recipient be limited in use of loan funds to purchasing land for an agricultural use for the term of the loan. The requirement to qualify for HFIL loans is contained in this rule in § 769.106.

The rate of interest for the intermediary lender will be set annually, but will not be less than 1 percent and the maximum HFIL loan term is 30 years. The intermediary lender will relend at a rate of interest and term negotiated with the ultimate recipient in a manner detailed in the Intermediary Relending Agreement approved by FSA.

The Intermediary Relending Agreement will contain the policies and procedures that the intermediary lender will follow with respect to the loan and the working relationship with the ultimate recipients. This will provide maximum flexibility for the intermediary lender to work with its ultimate recipient on loan making and loan servicing and will be approved by FSA prior to the HFIL loan closing. The required elements of the agreement are specified in § 769.103(d). The agreement and requirements are similar to the requirements in § 762.106 that must be met by FSA guaranteed lenders seeking certification as a preferred lender.

An intermediary lender will be required to have a revolving loan fund. All HFIL loan funds received by an intermediary lender must be deposited into an HFIL revolving fund account. The account must be fully covered by federal deposit insurance or fully collateralized with U.S. Government obligations and must remain separate from other funds of the intermediary lender. The fund will have two types of deposit accounts, one of which will be HFIL funds from FSA. The other will be comprised of repayments of loans from the ultimate recipients, interest earned on funds in the account and cash, or other short-term marketable assets that the intermediary lender chooses to deposit. Loans made to ultimate recipients will be from both deposit accounts within the revolving fund account, and therefore, loans can be made from initial loan funds from FSA and from repayments. Administrative fees and debt servicing costs will be paid from funds accumulated from repayments by ultimate recipients. Maintenance of the fund is described in § 769.121.

Primary security for the HFIL Loan Program will be in the form of a first lien in the intermediary lender's revolving loan fund. Additional security will be required if needed to fully secure the loan.

FSA determined that yearly monitoring reports would be both necessary for the success of the program and beneficial to the intermediary lender. FSA did not want to be over burdensome in the required type of reporting or audits and therefore adopted an approach similar to what has been successfully used in the Boll Weevil Eradication Loan Program in 7 CFR part 77.

This rule is adding § 769.124 to allow for transfer and assumptions of the HFIL loans in the event that an intermediary lender should want or need to discontinue participation in the HFIL Loan Program.

The Administrative Procedure Act (5 U.S.C. 553) provides generally that before rules are issued by Government agencies, the rule is required to be published in the Federal Register, and the required publication of a substantive rule is to be not less than 30 days before its effective date. One of the exceptions is when the agency finds good cause for not delaying the effective date. This rule is exempt from notice and comment rulemaking requirements of the Administrative Procedure Act (5 U.S.C. 553). The rule provides a way for tribes and tribal members to obtain loans to purchase fractionated interests via intermediary lenders as a way to help resolve the longstanding problems relating back to HFIL and will enable tribal members to participate in USDA programs that require land ownership. As noted in this rule, FSA has conducted Tribal consultation and will take public comments following the publication of this rule. Therefore, to help tribal members as soon as possible, using the administrative procedure provisions in 5 U.S.C. 553, FSA finds that there is good cause for making this rule effective less than 30 days after publication in the Federal Register. This rule allows FSA to implement the HFIL Loan Program in time for the 2016 fiscal year. Therefore, this final rule is effective when published in the Federal Register.

Executive Order 12866, “Regulatory Planning and Review,” and Executive Order 13563, “Improving Regulation and Regulatory Review,” direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.

The Office of Management and Budget (OMB) designated this rule as not significant under Executive Order 12866 and, therefore, OMB has not reviewed this final rule.

The Regulatory Flexibility Act (5 U.S.C. 601-612), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), generally requires an agency to prepare a regulatory flexibility analysis of any rule whenever an agency is required by the APA or any other law to publish a proposed rule, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. This rule is exempt from notice and comment rulemaking requirements of the APA and no other law requires that a proposed rule be published for this rulemaking initiative.

The environmental impacts of this rule have been considered in a manner consistent with the provisions of the National Environmental Policy Act (NEPA, 42 U.S.C. 4321-4347), the regulations of the Council on Environmental Quality (40 CFR parts 1500-1508), and the FSA regulations for compliance with NEPA (7 CFR part 1940, subpart G). This rule is to implement the new HFIL Loan Program, a program created by the 2014 Farm Bill. The discretionary provisions needed to implement the HFIL Loan Program, specifically those relating to our loans to the intermediary lenders include the loan making and servicing rules, which will mirror present FLP regulations. One discretionary provision that will not mirror current FSA rules is that implementation will be through an intermediary lender that will relend the funds, an approach that will be a new lending tool for FSA. The process FSA will use to administer the intermediary lending model was vetted through and determined to be acceptable by a Tribal consultation, held on December 10, 2014, at the Intertribal Agricultural Council annual meeting. As the provisions needed to implement this rule are all administrative in nature, FSA will not prepare an environmental assessment or environmental impact statement for this regulatory action.

Executive Order 12372, “Intergovernmental Review of Federal Programs,” requires consultation with State and local officials. The objectives of the Executive Order are to foster an intergovernmental partnership and a strengthened Federalism, by relying on State and local processes for State and local government coordination and review of proposed Federal Financial assistance and direct Federal development. For reasons set forth in the final rule related notice regarding 7 CFR part 3015, subpart V (48 FR 29115, June 24, 1983), the programs and activities within this rule are excluded from the scope of Executive Order 12372.

This rule has been reviewed in accordance with Executive Order 12988, “Civil Justice Reform.” This rule will not preempt State or local laws, regulations, or policies unless they represent an irreconcilable conflict with this rule. The rule does not have retroactive effect. Before any judicial action may be brought regarding the provisions of this rule, the administrative appeal provisions of 7 CFR parts 11 and 780 are to be exhausted.

This rule has been reviewed under Executive Order 13132, “Federalism.” The policies contained in this rule do not have any substantial direct effect on States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. Nor would this rule impose substantial direct compliance costs on State and local governments. Therefore, consultation with the States is not required.

This rule has been reviewed for compliance with Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments.” Executive Order 13175 imposes requirements on the development of regulatory policies that have Tribal implications or preempt Tribal laws. The USDA Office of Tribal Relations has concluded that the policies contained in this rule do not, to USDA's knowledge, preempt Tribal law.

Rulemaking to address the issue of HFIL was initially considered as part of the implementation of the Food, Conservation, and Energy Act of 2008 (Pub. L. 110-246, known as the 2008 Farm Bill). An HFIL loan program was authorized by the 2008 Farm Bill; however, the language required that the program operate as a direct loan program in which FSA would make loans directly to the ultimate recipients. During 2010, USDA held two sets of face-to-face Tribal consultation sessions across the country. FSA Farm Loan Programs held seven Tribal consultation sessions specifically to discuss the HFIL Loan Program (section 5501 of the 2008 Farm Bill) in the following locations on the following dates:

FSA Farm Loan Programs also participated in an additional seven Tribal consultation sessions across the country to discuss the 2008 Farm Bill changes, including the HFIL Loan Program. The USDA 2008 Farm Bill Tribal consultations were held in the following locations on the following dates:

Early on, during the 2008 Farm Bill Tribal consultations, FSA heard the various concerns that were raised and thought a workable solution could still be found to implement the HFIL Loan Program; however, as additional concerns continued to be raised and differences were identified in other regions of the country, it became clear that one of the problems was that the 2008 Farm Bill provision was tied to the BIA definition of highly fractionated and as such would also be tied to the BIA procedures for clearing titles, so it was determined that a regulation would not result in a successful program for Indian country. FSA listened and heard concerns about the land being too fractionated, the process being too complicated, the difficulties in really understanding the issues that caused the fractionation, problems with consolidation, and related cultural issues. In addition to the complexity of the BIA process for clearing titles for fractionated land, the results were different across the country. In one example, it took 6 months to clear a title, in another example, clearing a title took 10 years. There were suggestions that the HFIL Loan Program would work if FSA worked with existing Native American organizations that were already established to consolidate fractionated land and make it a relending program.

As a direct result of everything that FSA heard and learned throughout the 2008 Farm Bill Tribal consultations, FSA provided input for the new requirements in the 2014 Farm Bill to work out a way to make the regulations effective for Indian Country by incorporating the option for an intermediary lender to relend the funds and remove the tie to the BIA definition of highly fractionated.

For the development of this rule, a Tribal consultation was held on December 10, 2014, at the Intertribal Agricultural Council annual meeting. The participants in the Tribal consultation have strongly supported the HFIL Loan Program. During the Tribal consultation, FSA staff asked for and received feedback on the following proposed provisions of the HFIL Loan Program.

HFIL Proposed Provision: Should the HFIL Loan Program be administered as a relending program?

Tribal Consultation Response: Yes.

HFIL Proposed Provision: Should there be a minimum number of acres consolidated with the HFIL Loan Program?

Tribal Consultation Response: No.

HFIL Proposed Provision: Should there be a limited number of intermediary lenders?

Tribal Consultation Response: Yes, given the limited amount of funds, approved intermediary lenders should be limited to no more than two lenders per year.

HFIL Proposed Provision: Should there be any restrictions to the use of funds under the HFIL Loan Program?

Tribal Consultation Response: Yes, funds should be used only for the consolidation of agricultural land.

During the 90-day comment period for this rule, FSA will schedule additional Tribal consultation on the HFIL Loan Program. Although FSA is making this rule effective on publication, FSA will work on changes to the regulation as needed based on comments and additional input from Tribal consultation.

In addition, to developing the HFIL Loan Program, FSA will continue to engage with Tribal organizations to ensure HFIL Loan Program rules are consistent with Tribal laws and so that the HFIL Loan Program has a maximum opportunity for success. USDA will continue to coordinate with Tribal governmental organizations concerning this rule and will provide appropriate venues, such as webinars and teleconferences, to host collaborative conversations with Tribal leaders and their representatives concerning ways to improve this rule in Indian country.

Title II of the Unfunded Mandate Reform Act of 1995 (UMRA, Pub. L. 104-4) requires Federal agencies to assess the effects of their regulatory actions on State, local, or Tribal governments or the private sector. Agencies generally must prepare a written statement, including a cost benefit analysis, for proposed and final rules with Federal mandates that may result in expenditures of $100 million or more in any 1 year for State, local, or Tribal governments, in the aggregate, or to the private sector. UMRA generally requires agencies to consider alternatives and adopt the more cost effective or least burdensome alternative that achieves the objectives of the rule. This rule contains no Federal mandates under the regulatory provisions of Title II of the Unfunded Mandates Reform Act of 1995 for State, local, or Tribal governments, or the private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of UMRA.

FSA will not be collecting any information from the ultimate recipients in the HFIL Loan Program. There are some reporting requirements on the HFIL Loan Program activities from intermediary lenders to FSA. The intermediary lenders must allow FSA to review the ultimate recipients' records; the intermediary lenders maintain the records are expected to be a part of customary and usual business practices for the process of loans. Therefore, the burden associated with recordkeeping is excluded. The intermediary lenders will be an entity that meets certain criteria to be established by FSA such as: Has been active in the previous 5 years, and has expertise in technical assistance, is an established financial organization which is regulated by an acceptable state or federal regulatory agency, meets certain capital requirements, and ability to work with the Bureau of Indian Affairs (BIA). FSA will lend funds to an eligible entity, which will then relend directly to a Tribe or an individual. There are limited entities that will qualify to be intermediary lenders for the HFIL Loan Program. The current annual allocation of $10 million will not sufficiently fund multiple intermediaries. For the HFIL Loan Program to be effective adequate funds must be available for each intermediary lender to borrow to relend. As discussed above, at the Tribal Consultation held on December 10, 2014, members in attendance strongly suggested that HFIL Loan Program be restricted to no more than 2 intermediary lenders per year for funding due to limited funding. FSA expects to have less than 10 intermediary lenders eligible to participate in the HFIL Loan Program annually. Therefore, this would not require OMB approval under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

FSA is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

For the reasons discussed above, FSA amends 7 CFR chapter VII as follows:

The NRC is amending its regulations in parts 1, 2, 4, 7, 9, 11, 15, 19, 20, 21, 25, 26, 30, 32, 37, 40, 50, 51, 52, 55, 60, 61, 62, 63, 70, 71, 72, 73, 74, 76, 81, 95, 100, 110, 140, 150, 170, and 171 of title 10 of the Code of Federal Regulations (10 CFR) to make miscellaneous corrections. These changes include renaming the Office of Information Services, renaming the Computer Security Office and removing it as a standalone office, capitalizing the words Tribe, Tribes, and Tribal, correcting a Web site address, correcting a misspelling, removing a submission requirement, correcting an email address, correcting a room number, removing a Federal Register notice requirement, and adding missing information collection references. This document is necessary to inform the public of these non-substantive changes to the NRC's regulations.

Remove Office. This final rule removes and reserves § 1.38. The Computer Security Office has been renamed the Information Security Directorate and will now be part of the Office of the Chief Information Officer. The Information Security Directorate information is now included as new paragraphs (h) through (l) under § 1.35. Additional editorial changes have been made as the result of adding the new paragraphs. Also, in § 1.3, paragraph (c), the phrase “Information and Records Services Division” is being removed as reference to the Office is sufficient information.

Rename Office. This final rule removes all references to the office name “Office of Information Services” and replaces them with the new office name “Office of the Chief Information Officer.”

Capitalize The Words Tribe, Tribes, And Tribal. This final rule capitalizes all references of “Tribe,” “Tribes,” and “Tribal.” These changes are being made so that these terms are used consistently in the NRC's regulations.

Correct Web site Address. In § 37.77(a)(1), this final rule removes the incorrect Web site address “https://nrc.stp.ornl.gov/special/designee.pdf” and replaces it with the correct Web site address “https://scp.nrc.gov/special/designee.pdf.”

Correct Misspelling. In § 50.34(f)(3)(v)(A)(1) and (B)(1), this final rule removes the misspelled term “subsubarticle” and replaces it with the correct term “subarticle.”

Remove Submission Requirement In section V, of appendix E, this final rule removes the requirement on nuclear power plant licensees to submit any changes to their emergency plans or procedures to the Commission, as specified in § 50.4, within 30 days. Changes to an emergency plan, however, must still be reported to the NRC or requested in a license amendment application as required in 10 CFR 50.54(q). With regard to changes to procedures that are required to be submitted under appendix E, section V only, and not under 10 CFR 50.54(q), the NRC has found that these changes consist of administrative information that is inconsequential to the NRC's licensing or regulatory oversight activities (such as address changes and phone number changes). Even after the effective date of this rule, these changes to procedures will remain subject to NRC inspection. Thus, the change to appendix E, section V will reduce the regulatory burden on the licensee and the administrative burden on the NRC staff without impacting the NRC's oversight and inspection of nuclear power plant licensees. For these reasons, this rule reflects a non-substantive change of a duplicative requirement where notice-and-comment is unnecessary under the Administrative Procedure Act (5 U.S.C. 553(b)).

Correct Email Address. In § 51.123(a) and (b), this final rule removes the incorrect email address “[email protected]” and replaces it with the correct email address “[email protected].”

Correct Office Room Number. In Footnote 1 of § 55.40, this final rule removes the incorrect room number for the NRC Public Document “(0-1 F23)” and replaces it with the correct room number “(O-1 F21).”

Remove Federal Register Notice Requirement. In § 71.97(c)(3)(ii), this rule removes the requirement that changes to the list of governor's designees and Tribal official's designees of participating Tribes be published annually in the Federal Register on or about June 30th. This section will now direct stakeholders to the NRC's public Web site where the most accurate information is available. This change also conforms this section to §§ 37.77(a)(1) and 73.37(b)(2).

Add Missing Information Collection References. In § 73.8, this final rule adds sections “73.23” and “73.51” to the list of sections in 10 CFR part 73 that contain information collections. These two sections were added to § 73.8 in a final rule dated July 6, 2012 (77 FR 39909), and were inadvertently removed in a final rule published on May 20, 2013 (78 FR 29550).

Correct Web site Address. In § 73.37(b)(2), this final rule removes the incorrect Web site address “https://nrc.stp.ornl.gov/special/designee.pdf” and replaces it with the correct Web site address “https://scp.nrc.gov/special/designee.pdf.”

Under the Administrative Procedure Act (5 U.S.C. 553(b)), an agency may waive the normal notice and comment requirements if it finds, for good cause, that they are impracticable, unnecessary, or contrary to the public interest. As authorized by 5 U.S.C. 553(b)(3)(B), the NRC finds good cause to waive notice and opportunity for comment on the amendments, because notice and opportunity for comment are unnecessary. The amendments will have no substantive impact and are of a minor and administrative nature dealing with corrections to certain CFRs related only to management, organization, procedure, and practice. Specifically, the revisions rename offices, capitalize words, correct a Web site address, correct a misspelling, remove a submission requirement, correct an email address, correct a room number, remove a Federal Register notice requirement, and add missing information collection references.

The Commission is exercising its authority under 5 U.S.C. 553(b)(3)(B) to publish these amendments as a final rule. The amendments are effective December 31, 2015. These amendments do not require action by any person or entity regulated by the NRC. Also, the final rule does not change the substantive responsibilities of any person or entity regulated by the NRC.

The NRC has determined that this final rule is the type of action described in 10 CFR 51.22(c)(2), which categorically excludes from environmental review rules that are corrective or of a minor, nonpolicy nature and do not substantially modify existing regulations. Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this rule.

This final rule does not contain a collection of information as defined in the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and, therefore, is not subject to the requirements of the Paperwork Reduction Act of 1995. The final rule, however, makes a non-substantive modification to an information collection, as the final rule eliminates a collection of information previously contained in 10 CFR part 50, appendix E, section V. The collection of information was approved by the Office of Management and Budget, approval number 3150-0011.

The NRC may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the requesting document displays a currently valid Office of Management and Budget control number.

The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal agencies to write documents in a clear, concise, and well-organized manner. The NRC has written this document to be consistent with the Plain Writing Act as well as the Presidential Memorandum, “Plain Language in Government Writing,” published June 10, 1998 (63 FR 31883).

The NRC has determined that the corrections in this final rule do not constitute backfitting and are not inconsistent with any of the issue finality provisions in 10 CFR part 52. The revisions are non-substantive in nature, including renaming offices, capitalizing words, correcting a Web site address, correcting a misspelling, removing a submission requirement, correcting an email address, correcting a room number, removing a Federal Register notice requirement, and adding missing information collection references. They impose no new requirements and make no substantive changes to the regulations. The corrections do not involve any provisions that would impose backfits as defined in 10 CFR chapter I, or would be inconsistent with the issue finality provisions in 10 CFR part 52. For these reasons, the issuance of the rule in final form would not constitute backfitting or represent an inconsistency with any of the issue finality provisions in 10 CFR part 52. Therefore, the NRC has not prepared any additional documentation for this correction rulemaking addressing backfitting or issue finality.

This AD is a final rule that involves requirements affecting flight safety, and we did not provide you with notice and an opportunity to provide your comments prior to it becoming effective. However, we invite you to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that resulted from adopting this AD. The most helpful comments reference a specific portion of the AD, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit them only one time. We will file in the docket all comments that we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this rulemaking during the comment period. We will consider all the comments we receive and may conduct additional rulemaking based on those comments.

On October 28, 2015 we issued Emergency AD 2015-22-52 for Airbus Helicopters Model AS350B3 helicopters with a dual hydraulic system that prohibited performing the yaw load compensator check (collective switch) during preflight procedures and instead required performing it during post-flight procedures. Emergency AD 2015-22-52 also required the yaw servo hydraulic switch (collective switch) to be in the “ON” (forward) position before taking off. Emergency AD 2015-22-52 was sent previously to all known U.S. owners and operators of these helicopters. The actions in Emergency AD 2015-22-52 were intended to prevent takeoff without hydraulic pressure in the T/R hydraulic system, loss of T/R flight control, and subsequent loss of control of the helicopter.

Emergency AD 2015-22-52 was prompted by two accidents and one incident of Airbus Helicopters Model AS350B3 helicopters with a dual hydraulic system installed. From preliminary investigations, loss of T/R control during takeoff was evident in each event. Each event experienced a counterclockwise rotational yaw immediately after takeoff. It was also noted that the anti-torque pedals felt jammed or locked in the neutral position by the pilots in the two non-fatal events. The conditions in the events are indicative of takeoffs without hydraulic T/R assistance caused by a lack of pressure in the T/R hydraulic system. When taking off without T/R hydraulic assistance with the switch on the collective grip in the “OFF” (aft) position, the yaw load compensator remains discharged and degrades the T/R hydraulic system, which significantly increases the pilot T/R control load and prevents sufficient T/R thrust for takeoff.

Based on the accidents and incident, EASA, which is the Technical Agent for the Member States of the European Union, issued EASA AD No. 2015-0178, dated August 26, 2015, to correct an unsafe condition for Airbus Helicopters Model AS 350 B3 helicopters, equipped with a dual hydraulic system identified as modification OP 3082 or OP 3346. EASA advises of a perceived loss of T/R control that mimics jamming during take-off if the T/R hydraulic preflight checks are not performed in accordance with the checklist in the RFM. According to EASA, performing the T/R hydraulic preflight checks improperly may result in reduced function of the T/R hydraulic system, thereby significantly increasing the T/R control load for the pilot.

After we issued Emergency AD 2015-22-52, we received comments noting an error in terminology and a defect in reporting compliance that resulted in confusion in how to comply with Emergency AD 2015-22-52. Specifically, we referred to the collective switch for the yaw load compensator check, when we should have referred to the ACCU TST switch. Activating the collective switch after rotor shut-down will have no effect due to the absence of hydraulic pressure in the system. We also omitted a method of recording compliance. Therefore, on October 30, 2015, we issued Emergency AD 2015-22-53 to supersede Emergency AD 2015-22-52 to correct the error in terminology and the defect in recording compliance. Emergency AD 2015-22-53 requires revising the normal operating procedures section of the RFM to prohibit performing the yaw load compensator check (ACCU TST switch) during preflight procedures and instead require performing it during post-flight procedures after rotor shut-down. Emergency AD 2015-22-53 also requires revising the RFM to state that the yaw servo hydraulic switch (collective switch) must be in the “ON” (forward) position before taking off. Emergency AD 2015-22-53 was also sent previously to all known U.S. owners and operators of these helicopters.

This helicopter has been approved by the aviation authority of France and is approved for operation in the United States. Pursuant to our bilateral agreement with France, EASA, its technical representative, has notified us of the unsafe condition described in the EASA AD. We are issuing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other helicopters of this same type design.

Airbus Helicopters issued Service Bulletin No. AS350-67.00.66, Revision 1, dated October 22, 2015 (SB AS350-67.00.66), which specifies inserting specific pages of the bulletin into the RFM. These pages revise the preflight and post-flight hydraulic checks by moving the T/R yaw load compensator check from preflight to post-flight. These pages also revise terminology within the flight manuals for the different engine configurations.

Airbus Helicopters also issued Safety Information Notice No. 2944-S-29, Revision 0, dated August 26, 2015 (SIN 2944-S-29), which warns that attempting to take off without T/R hydraulic assistance (which may be caused by the yaw servo hydraulic switch on the collective grip in the “OFF” (aft) position) might be incorrectly perceived as T/R control failure (jam), which could lead to loss of control of the helicopter if not quickly identified and corrected. SIN 2944-S-29 also advises of the RFM update that revises the run-up hydraulic check starting procedures to no longer specify “pressing” the yaw servo hydraulic switch. To mitigate this potential error, the yaw load compensator check has been moved from preflight to post-flight procedures. Further, SIN 2944-S-29 states the yaw servo hydraulic switch, which is located on the collective grip, is also called the hydraulic pressure switch or hydraulic cut off switch in various RFMs.

This AD requires, before further flight, revising the RFM to stop performing the yaw load compensator check (ACCU TST switch) during preflight procedures and instead perform the yaw load compensator check during post-flight procedures after rotor shut-down. This AD also requires revising the RFM to state that the yaw servo hydraulic switch (collective switch) must be in the “ON” (forward) position before taking off.

The EASA AD requires revising the RFM by incorporating procedures contained in Airbus Helicopters Service Bulletin No. AS350-67.00.66, Revision 0, dated August 26, 2015, and informing all flight crew of the RFM changes. This AD requires revising the RFM by inserting a copy of this AD or by making pen and ink changes.

We consider this AD to be an interim action. The design approval holder is currently developing a terminating action that will address the unsafe condition identified in this AD. Once this terminating action is developed, approved, and available, we might consider additional rulemaking.

We estimate that this AD affects 427 helicopters of U.S. Registry. We estimate that operators may incur the following costs in order to comply with this AD at an average labor rate of $85 per work-hour. It takes about 0.5 work-hour to revise an RFM for a cost of $43 per helicopter and $18,361 for the U.S. fleet.

Providing an opportunity for public comments prior to adopting these AD requirements would delay implementing the safety actions needed to correct this known unsafe condition. Therefore, we found and continue to find that the risk to the flying public justifies waiving notice and comment prior to the adoption of this rule because the previously described unsafe condition can adversely affect the controllability of the helicopter and the initial required action must be accomplished before further flight.

Since it was found that immediate corrective action was required, notice and opportunity for prior public comment before issuing this AD were impracticable and contrary to public interest and good cause existed to make the AD effective immediately by Emergency AD 2015-22-53, issued on October 30, 2015, to all known U.S. owners and operators of these helicopters. These conditions still exist and the AD is hereby published in the Federal Register as an amendment to section 39.13 of the Federal Aviation Regulations (14 CFR 39.13) to make it effective to all persons.

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

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

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

For the reasons discussed, I certify that this AD:

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

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

3. Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; and

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

We prepared an economic evaluation of the estimated costs to comply with this AD and placed it in the AD docket.

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

On March 12, 2015, NOAA expanded the boundaries of Gulf of the Farallones National Marine Sanctuary (now renamed Greater Farallones National Marine Sanctuary or GFNMS) and Cordell Bank National Marine Sanctuary (CBNMS) to an area north and west of their previous boundaries with a final rule (80 FR 13078). The Final Rule entered into effect on June 9, 2015 (80 FR 34047). At that time, NOAA postponed the effectiveness of the discharge requirements in both sanctuaries' regulations with regard to U.S. Coast Guard (USCG) activities for 6 months.

This document postpones the effectiveness of the discharge requirements in both sanctuaries with regard to USCG activities for another 6 months, until June 9, 2016. In the course of the rule making to expand GFNMS and CBNMS, NOAA learned from USCG that the discharge regulations had the potential to impair the operations of USCG vessels and air craft conducting law enforcement and on-water training exercises in GFNMS and CBNMS. The USCG supports national marine sanctuary management by providing routine surveillance and dedicated law enforcement of the National Marine Sanctuaries Act and sanctuary regulations.

To ensure that the March 12, 2015 rule does not undermine USCG's ability to perform its duties, NOAA postponed for 6 months the effectiveness of the discharge requirements for USCG operations. Specifically, the effectiveness of the discharge requirements was postponed until December 9, 2015. However, NOAA needs more time to assess USCG activities and develop alternatives for an environmental assessment developed pursuant to the requirements of the National Environmental Policy Act. Therefore, NOAA is postponing the effectiveness of the discharge requirements with respect to USCG operations for another 6 months, until June 9, 2016. During this time, NOAA will consider how to address USCG's concerns and will consider, among other things, whether to exempt certain USCG activities in sanctuary regulations. The public, other federal agencies, and interested stakeholders will be given an opportunity to comment on various alternatives that are being considered. This will include the opportunity to review any proposed rule and related environmental analysis.

The Pension Benefit Guaranty Corporation (PBGC) administers the pension plan termination insurance program under Title IV of the Employee Retirement Income Security Act of 1974 (ERISA). PBGC's regulation on Allocation of Assets in Single-Employer Plans (29 CFR part 4044) sets forth (in subpart B) the methods for valuing plan benefits of terminating single-employer plans covered under Title IV. Guaranteed benefits and benefit liabilities under a plan that is undergoing a distress termination must be valued in accordance with subpart B of part 4044. In addition, when PBGC terminates an underfunded plan involuntarily pursuant to ERISA section 4042(a), it uses the subpart B valuation rules to determine the amount of the plan's underfunding.

Under § 4044.51(b) of the asset allocation regulation, early retirement benefits are valued based on the annuity starting date, if a retirement date has been selected, or the expected retirement age, if the annuity starting date is not known on the valuation date. Sections 4044.55 through 4044.57 set forth rules for determining the expected retirement ages for plan participants entitled to early retirement benefits. Appendix D of part 4044 contains tables to be used in determining the expected early retirement ages.

Table I in appendix D (Selection of Retirement Rate Category) is used to determine whether a participant has a low, medium, or high probability of retiring early. The determination is based on the year a participant would reach “unreduced retirement age” (i.e., the earlier of the normal retirement age or the age at which an unreduced benefit is first payable) and the participant's monthly benefit at unreduced retirement age. The table applies only to plans with valuation dates in the current year and is updated annually by the PBGC to reflect changes in the cost of living, etc.

Tables II-A, II-B, and II-C (Expected Retirement Ages for Individuals in the Low, Medium, and High Categories respectively) are used to determine the expected retirement age after the probability of early retirement has been determined using Table I. These tables establish, by probability category, the expected retirement age based on both the earliest age a participant could retire under the plan and the unreduced retirement age. This expected retirement age is used to compute the value of the early retirement benefit and, thus, the total value of benefits under the plan.

This document amends appendix D to replace Table I-15 with Table I-16 in order to provide an updated correlation, appropriate for calendar year 2016, between the amount of a participant's benefit and the probability that the participant will elect early retirement. Table I-16 will be used to value benefits in plans with valuation dates during calendar year 2016.

PBGC has determined that notice of, and public comment on, this rule are impracticable and contrary to the public interest. Plan administrators need to be able to estimate accurately the value of plan benefits as early as possible before initiating the termination process. For that purpose, if a plan has a valuation date in 2016, the plan administrator needs the updated table being promulgated in this rule. Accordingly, the public interest is best served by issuing this table expeditiously, without an opportunity for notice and comment, to allow as much time as possible to estimate the value of plan benefits with the proper table for plans with valuation dates in early 2016.

PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866.

Because no general notice of proposed rulemaking is required for this regulation, the Regulatory Flexibility Act of 1980 does not apply (5 U.S.C. 601(2)).

In consideration of the foregoing, 29 CFR part 4044 is amended as follows:

The revisions to this rule will be reported in future status updates as part of DoD's retrospective plan under Executive Order 13563 completed in August 2011. DoD's full plan can be accessed at: http://www.regulations.gov/#!docketDetail;D=DOD-2011-OS-0036.

DoD has determined this rulemaking meets the criteria for a direct final rule because it involves changes dealing with DoD's management of its Privacy Programs. DoD expects no opposition to the changes and no significant adverse comments. However, if DoD receives a significant adverse comment, the Department will withdraw this direct final rule by publishing a notice in the Federal Register. A significant adverse comment is one that explains: (1) Why the direct final rule is inappropriate, including challenges to the rule's underlying premise or approach; or (2) why the direct final rule will be ineffective or unacceptable without a change. In determining whether a comment necessitates withdrawal of this direct final rule, DoD will consider whether it warrants a substantive response in a notice and comment process.

This rule provides policy and procedures for Army's implementation of the Privacy Act of 1974, as amended. The Army is removing an exemption rule from the exemptions section. This regulatory action imposes no monetary costs to the Agency or public.

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distribute impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. It has been determined that this rule is not a significant rule.

It has been determined that this rule does not have significant economic impact on a substantial number of small entities because it is concerned only with the administration of Privacy Act within the Department of Defense.

It has been determined that this rule imposes no information collection requirements on the public under the Paperwork Reduction Act of 1995.

It has been determined that this rule does not involve a Federal mandate that may result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more and that such rulemaking will not significantly or uniquely affect small governments.

It has been determined that this rule does not have federalism implications. This rule does not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government.

Accordingly 32 CFR part 505 is amended as follows:

On December 22, 1994, the National Park Service (NPS) adopted regulations codified at 36 CFR part 6 to implement a statutory requirement of Public Law 98-506 (54 U.S.C. 100903) (Act), which was enacted in 1984. The Act prohibits the operation of a solid waste disposal site within the boundary of any unit of the National Park System except for those operating as of September 1, 1984, or those “used only for disposal of wastes generated within that unit of the park system so long as such site will not degrade any of the natural or cultural resources of such park unit.” The Act directed the Secretary of the Interior to promulgate regulations “to carry out the provisions of this subsection, including reasonable regulations to mitigate the adverse effects of solid waste disposal sites in operation as of September 1, 1984, upon property of the United States.”

The general regulations at 36 CFR part 6 ordinarily control both existing and new solid waste disposal sites within the boundaries of any unit of the National Park System to ensure that operation of such sites will not degrade the natural or cultural resources of the park unit. Transfer stations are included in the definition of “solid waste disposal site” in § 6.3 and are therefore subject to 36 CFR part 6.

Section 6.4(a) prohibits any person (including NPS) from operating a new solid waste disposal site within the boundaries of a park unit unless the criteria in § 6.4(a) are met. Section 6.4(a)(1) requires that the solid waste handled by the site is generated solely from “National Park Service activities,” defined in § 6.3 as “operations conducted by the National Park Service or a National Park Service contractor, concessionaire or commercial use licensee.” Section 6.4(a)(9) requires that “the site is not located within one mile of a National Park Service visitor center, campground, ranger station, entrance station, or similar public use facility, or a residential area.” Section 6.4(a)(10) requires that the site is not detectable by public sight, sound, or odor from a scenic vista, a public use facility, a designated or proposed wilderness area, a site listed on (or eligible for listing on) the National Register of Historic Places, or a public road. Section 6.8(a) prohibits the NPS from accepting waste at an NPS operated solid waste disposal site, except for waste generated by NPS activities.

The NPS is promulgating a park-specific regulation in 36 CFR 7.62 to authorize a limited exception to the general regulations described above. The rule authorizes an NPS transfer station on federal lands near Stehekin, Washington, within the boundary of Lake Chelan National Recreation Area (LACH or park), that does not satisfy all of the siting requirements in part 6 and that accepts non-NPS waste generated by the Stehekin community. The need for this regulation is explained below.

Stehekin is a remote community of approximately 75 year-round, plus 80 seasonal, residents located on privately owned land within the statutory boundary of LACH. Stehekin is located at the head of 55-mile-long Lake Chelan and is accessible only by boat, float plane, or foot trail. Non-NPS services and facilities in Stehekin include seasonal lodging, food operations, and other small businesses that help support 35,000-45,000 park visitors annually. The NPS operates the only facility in the Stehekin Valley for the management of solid waste. Waste consolidated at the NPS transfer station is shipped by barge 55 miles down the lake for ultimate disposal. The geographically isolated private residents and businesses in Stehekin have no feasible method of properly disposing solid waste other than at the NPS transfer station. Consequently, the NPS has for many years accepted Stehekin community waste in its transfer station to deter small dumps on private lands and illegal dumping on public lands. Although the Act does not prohibit the NPS from receiving Stehekin waste, this waste does not qualify as waste generated from “National Park Service activities” under the existing regulations, so the current practice of accepting waste from Stehekin at the existing NPS transfer station conflicts with 36 CFR 6.8(a).

The existing NPS transfer station is located within the 100-year floodplain and is part of a larger maintenance facility that is being relocated outside of the Stehekin River floodplain due to frequent flooding.1 The NPS seeks to build a new transfer station at the site of the new maintenance facility in a more environmentally suitable location within LACH and outside the 100-year floodplain. The NPS has determined that there is no available or suitable nonfederal land, and a limited amount of buildable federal land, outside the floodplain in the lower Stehekin River valley.2 The NPS has also determined that, due to geographic constraints, there are no suitable locations for the new transfer station that comply with the site location requirements in § 6.4(a)(9) and (10). Specifically, like the existing maintenance facility and transfer station, the proposed site of the new transfer station: (i) Is located within one mile of a campground (Harlequin Campground) and residential housing; (ii) will likely be visible from scenic vistas and off-trail areas in designated wilderness areas; (iii) may be heard from a campground (Harlequin Campground); and (iv) may be detectable by sight, sound, or odor from a road open to public travel.

The NPS has determined that in these unique circumstances, it will best protect park resources to allow the NPS transfer station, whether at the existing or proposed location, to accept waste generated by the community of Stehekin, notwithstanding the prohibition on accepting non-NPS waste in §§ 6.4(a)(1) and 6.8(a) and the siting criteria in § 6.4(a)(9) and (10). Due to its geographic isolation, the community of Stehekin has no environmentally responsible or practicable alternative for the disposal of its waste, much of which is generated by the provision of essential services to thousands of park visitors each year. Prohibiting this community from using the existing or proposed NPS transfer station could result in the illegal disposal of waste on park lands, or other disposal practices which would degrade the natural resources of LACH. In this exceptional situation, accepting non-NPS-generated waste for transfer and ultimate disposal outside the park boundary will pose significantly fewer environmental land use concerns than other alternatives. This determination is supported by the analysis contained in the November 2014 Replacement of Administrative Facilities at Stehekin Environmental Assessment (EA) and the August 2015 Finding of No Significant Impact (FONSI), which examine the environmental impacts of the continued operation of the existing NPS transfer station and the construction and operation of the new transfer station, which will employ contemporary environmental methods for handling waste.

The NPS promulgates a special regulation to authorize an exception to a prohibition found in a general regulation only in limited circumstances. The only other exceptions to the part 6 requirements have been granted by special regulation for Alaskan parks under similar circumstances, where geographically isolated communities have no feasible alternative for solid waste disposal that complies with the part 6 requirements. The rule accommodates the circumstances of the Stehekin community which is located in a remote area within the boundary of LACH and has no other practicable options for environmentally responsible solid-waste disposal. It is designed only to authorize the operation of the existing transfer station and the proposed transfer station at the locations identified in the EA, which the NPS believes will best protect park resources based upon the analysis contained in the EA. All other requirements in part 6 will remain in effect and apply to the existing and new NPS transfer station, including the requirement in § 6.4(a)(3) that the site of the existing and new facility “will not degrade any of the natural or cultural resources” of LACH. The rule is consistent with the Act, which does not prohibit new solid waste disposal sites from handling waste generated by non-NPS activities within a park unit provided that the site will not degrade any of the park unit's natural or cultural resources. The rule does not supersede or replace other requirements applicable to solid waste disposal sites, including the policy (unless there is an approved waiver) in Director's Order #35B (Sale of National Park Service Produced Utilities) that NPS recover the cost of utilities (including the collection and disposal of solid waste) provided to non-NPS users.

Under these circumstances, the NPS has determined that the exceptions to part 6 in the rule are appropriate and the sites will not degrade the park's natural or cultural resources.

The NPS published the proposed rule at 80 FR 39985 (July 13, 2015). The NPS accepted comments through the mail, hand delivery, and the Federal eRulemaking Portal at http://www.regulations.gov. Comments were accepted through October 13, 2015.The NPS also held public workshops to discuss the proposed rule on October 7 in Wenatchee and on October 8 in Stehekin. The NPS did not receive any comments on the proposed rule. The NPS has not made any changes to the proposed rule.

Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has determined that this rule is not significant.

Executive Order 13563 reaffirms the principles of Executive Order 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. It emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.

This rulemaking will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). This certification is based on the benefit-cost and regulatory flexibility analyses found in the report entitled “Benefit-Cost and Regulatory Flexibility Analyses: Solid Waste Management at Lake Chelan National Recreation Area” which can be viewed online at http://parkplanning.nps.gov/SMFRP by clicking the link entitled “Document List.”

This rule is not a major rule under 5 U.S.C. 804(2), the SBREFA. This rule:

a. Does not have an annual effect on the economy of $100 million or more.

b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.

c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

This rule does not impose an unfunded mandate on State, local, or tribal governments, or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local, or tribal governments or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is not required.

This rule does not effect a taking of private property or otherwise have taking implications under Executive Order 12630. A takings implication assessment is not required.

Under the criteria in section 1 of Executive Order 13132, this rule does not have sufficient federalism implications to warrant the preparation of a Federalism summary impact statement. A Federalism summary impact statement is not required.

This rule complies with the requirements of Executive Order 12988. Specifically, this rule:

a. Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and

b. Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.

The Department of the Interior strives to strengthen its government-to-government relationship with Indian Tribes through a commitment to consultation with Indian Tribes and recognition of their right to self-governance and tribal sovereignty. We have evaluated this rule under the criteria in Executive Order 13175 and under the Department's tribal consultation policy and have determined that tribal consultation is not required because the rule will have no substantial direct effect on federally recognized Indian tribes.

In May and July 2014, the NPS sent letters to the Tribal Historic Preservation Officers for the Colville Confederated Tribes and the Confederated Tribes and Bands of the Yakama Nation inviting comment regarding the inventory, evaluation, and finding of no effect on cultural resources within the project area. This encompasses the relocation of all maintenance facilities, including the transfer station, as proposed in the preferred alternative (Alternative 2) in the EA. These tribes did not identify any concerns related to the project.

This rule does not contain information collection requirements, and a submission to the Office of Management and Budget under the Paperwork Reduction Act is not required. We may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number.

This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the NEPA is not required because we reached a Finding of No Significant Impact. This rule implements part of the preferred alternative (Alternative 2) in the EA, which is the selected alternative in the FONSI. The EA and FONSI are referenced above and available online at http://parkplanning.nps.gov/SMFRP by clicking on “Document List.”

This rule is not a significant energy action under the definition in Executive Order 13211. A Statement of Energy Effects is not required.

The primary author of this regulation is Jay Calhoun, Regulations Program Specialist, Division of Regulations, Jurisdiction, and Special Park Uses, National Park Service, 1849 C Street NW., Washington, DC 20240.

In consideration of the foregoing, the NPS amends 36 CFR part 7 as follows:

The Veterans Access, Choice, and Accountability Act of 2014 (the Choice Act, Pub. L. 113-146, 128 Stat. 1754) was enacted on August 7, 2014. Further amendments to the Choice Act were made on September 26, 2014, by the Department of Veterans Affairs Expiring Authorities Act of 2014 (Pub. L. 113-175, 128 Stat. 1901, 1906); on December 16, 2014, by the Consolidated and Further Continuing Appropriations Act of 2015 (Pub. L. 113-235, 128 Stat. 2130, 2568); on May 22, 2015, by the Construction Authorization and Choice Improvement Act (Pub. L. 114-19, 129 Stat. 215); and on July 31, 2015, by the Surface Transportation and Veterans Health Care Choice Improvement Act (Pub. L. 114-41, 129 Stat. 443). This interim final rule revises VA regulations that implement the Choice Act in accordance with the most recent amendments made by Public Laws 114-19 and 114-41. Prior to discussing the regulatory changes made in this interim final rule, a brief history of previous rulemakings that created and revised regulations that implement the Choice Act is provided below.

Section 101 of the Choice Act creates the Veterans Choice Program (the Program) and requires VA to enter into agreements with identified eligible non-Department of Veterans Affairs (VA) entities or providers to furnish hospital care and medical services to eligible veterans who elect to receive care under the Program. Sec. 101(a)(1)(A), Public Law 113-146, 128 Stat. 1754. On November 5, 2014, VA published an interim final rule, as required by section 101(n) of the Choice Act, to implement the Veterans Choice Program through new regulations at 38 CFR 17.1500-17.1540. 79 FR 65571 (hereafter referred to as the “November interim final rule”). VA published another interim final rule on April 24, 2015, modifying § 17.1510(e) to revise the methodology for calculating distances under that section from geodesic (or “straight-line”) distance to driving distance. 80 FR 22906 (hereafter referred to as the “April interim final rule”). VA published a final rule (hereafter referred to as the “final rule”) amending the payment rates in the Program to account for two exceptions: One for Alaska, and one for states with an All-Payer Model Agreement (Maryland). These two payment rate exceptions were authorized by section 242 of Division I of Public Law 113-235. 128 Stat. 2568.

Under the November interim final rule at § 17.1510(b)(4)(ii), veterans may be eligible to participate in the Veterans Choice Program if they live 40 miles or less from a VA medical facility but face an “unusual or excessive burden” in traveling to such medical facility based on the presence of a body of water or a geologic formation that cannot be crossed by road. As explained in the November interim final rule, this standard for “unusual or excessive burden” was VA's interpretation of the language in the Choice Act, which at that time required the burden to be “due to geographical challenges, as determined by the Secretary.” Sec. 101(b)(2)(D)(ii)(II), Pub. L. 113-146, 128 Stat. 1754. As explained in the final rule, section 3(a)(2) of Public Law 114-19 amended section 101(b)(2)(D)(ii)(II) of the Choice Act by defining additional criteria that could be the basis for finding that a veteran faced an “unusual or excessive burden” in traveling to receive care in a VA medical facility, including environmental factors such as roads that are not accessible to the general public, traffic, or hazardous weather; a medical condition that affects the ability to travel; or other factors, as determined by the Secretary. VA implemented two of these factors, namely the environmental factors such as roads that are not accessible to the general public, traffic, or hazardous weather, or a medical condition that affects the ability to travel, ahead of these regulatory revisions. We did so because we believe these factors are easily understood by the public and that implementation fulfilled a clear Congressional mandate that had an immediate effective date. These changes were not subject to notice and comment prior to implementation because they had an immediate effective date and VA did not need to interpret the language to give it effect. VA is now adding these criteria to § 17.1510(b)(4)(ii) and is merely restating the existing statutory law to make our regulations consistent with Congressional intent as well as consistent with our current practice. These new criteria in § 17.1510(b)(4)(ii) are a virtually verbatim copy from section 3(a)(2) of Public Law 114-19 without the addition of further clarifying criteria, although we provide some examples here for clarity. For instance, roads that are not accessible to the general public include roads through military bases or other restricted areas. If veterans are only able to access a VA medical facility that is 40 miles or less from their residence via such a restricted road, they can be considered eligible for the Program under this standard. Traffic or hazardous weather includes special traffic congestion and patterns or weather conditions that make travel of a veteran to a VA medical facility 40 miles or less from their residence excessively or unusually burdensome. A medical condition that affects the ability to travel includes a medical condition of the veteran that affects the ability of the veteran to safely travel for 40 miles or less to a VA medical facility or that otherwise makes such travel burdensome. As an example, veterans on portable ventilators or with oxygen tanks may only be able to travel for a certain amount of time before their health is in jeopardy. As another example, veterans with spinal cord injuries or other serious conditions may require the use of assistive devices or may not be able to traverse over bumpier or windier roads, and may also face an unusual or excessive burden in traveling to a VA medical facility that is 40 miles or less from their residence. If traveling to a non-VA facility would be safer for such veterans than traveling to the nearest VA medical facility, they can qualify for the Program under this standard because traveling to the VA medical facility would be unusually or excessively burdensome. These are intended to be clarifying but not exhaustive examples of medical conditions that may qualify veterans to receive care at non-VA facilities under the new medical condition criterion in § 17.1510(b)(4)(ii). VA currently makes determinations regarding eligibility under the “unusual or excessive burden” criterion in § 17.1510(b)(4)(ii) based on the facts presented by the particular veteran's circumstances, and will continue to do so under the new criteria in § 17.1510(b)(4)(ii). Such determinations do not need to be made in person and can instead be made based on information that is available in the veteran's medical record or that is otherwise available to VA.

In addition to the express factors in section 3(a)(2) of Public Law 114-19 that are related to the environment or that are related to the medical condition of a veteran, we add three “other factors” to § 17.1510(b)(4)(ii)(A) through (C) that the Secretary may consider when determining whether a veteran faces an unusual or excessive burden in travelling to a VA medical facility that is 40 miles or less from their residence. These criteria are newly implemented in this interim final rule and are not intended to be an exhaustive list, although VA anticipates they will address the majority of cases that could reasonably be the basis for finding an unusual or excessive burden in travel. These other factors are the nature or simplicity of the hospital care or medical services the veteran requires, how frequently the veteran needs hospital care or medical services, and the need for an attendant, which is defined as a person who provides required aid and/or physical assistance to the veteran, for a veteran to travel to a VA medical facility for hospital care or medical services. Considering the nature or simplicity of the care or services will allow VA to determine, for example, that routine and simple procedures that do not necessarily require the expertise or best practices of VA providers (such as simple tests or treatments like an allergy test or an immunization) do not justify traveling a longer distance just to receive that care from VA. Similarly, if a veteran needs repeated appointments for a course of treatment, such as chemotherapy, the frequency of travel could become an excessive burden on the veteran that could be alleviated or lessened by receiving care closer to home. If a veteran requires an attendant to travel to a VA medical facility, this could also create an excessive or unusual burden on the veteran, as he or she may need to arrange transportation with another person. VA will define the term “attendant” to include any person who provides required aid and/or physical assistance to the veteran to travel to a VA medical facility for hospital care or medical services. This definition is consistent with the definition of this term in VA's beneficiary travel regulation (see 38 CFR 70.2.), but the definition at § 70.2 is dependent on separate eligibility under the beneficiary travel program, and therefore is not cross referenced in § 17.1510(b)(4)(ii)(C). The list of factors in § 17.1510(b)(4)(ii)(A) through (C) is demonstrative and not exhaustive. There may be other unique factors that create an unusual or excessive burden for a veteran, and in such cases, VA will make a determination on a case-by-case basis.

Section 4005 of the Surface Transportation and Veterans Health Care Choice Improvement Act of 2015 amended section 101 of the Choice Act to: Remove the August 1, 2014 enrollment date restriction, thereby making all veterans enrolled in the VA health care system under § 17.36 eligible for the Program if they meet its other eligibility criteria; remove the 60-day limit on an episode of care; modify wait-time eligibility requirements; modify the 40-mile distance eligibility criterion; and expand provider eligibility based on criteria as determined by VA. Sec. 4005, Public Law 114-41, 129 Stat. 443. Paragraph (a) of § 17.1510 is therefore revised, and paragraphs (a)(1) and (2) are removed, so it is clear under revised § 17.1510(a) that all veterans enrolled under § 17.36 are potentially eligible, as required by subsection (b) of section 4005 of Public Law 114-41. VA has already implemented these changes related to removal of the August 1, 2014 enrollment date ahead of the regulatory revisions in this interim final rule. These changes were not subject to notice and comment prior to implementation because they had an immediate effective date and VA did not need to interpret the language to give it effect. These changes are merely a restatement of existing statutory law to make our regulations consistent with Congressional intent as well as consistent with our current practice. VA enrolls new veterans every day, so these changes have allowed more veterans who also meet the other eligibility requirements under § 17.1510 to be eligible for the Program.

We discuss below the remaining changes made by Public Law 114-41 to section 101 of the Choice Act that are newly implemented in this interim final rule. Section 4005(a) of Public Law 114-41 amended section 101(h) of the Choice Act by removing the 60-day limitation on an “episode of care.” Sec. 4005(a), Public Law 114-41, 129 Stat. 443. The definition of “episode of care” in § 17.1505 is therefore revised by removing the phrase “which lasts no longer than 60 days from the date of the first appointment with a non-VA health care provider.” We replace the 60-day limitation with a 1-year limitation, consistent with VA's authority in section 101(c)(1)(B)(i) of the Choice Act to establish a timeframe for authorization of care. This change creates a broader standard in terms of the possible duration of an episode of care, but the definition of “episode of care” in § 17.1505 still means a “necessary course of treatment, including follow-up appointments and ancillary and specialty services” for identified health care needs. VA therefore retains clinical judgment in this revised definition to determine whether ancillary and specialty care of any duration up to 1 year is actually needed in the course of a veteran's treatment. We reiterate from the November interim final rule that while some episodes of care require only a single visit, others may require multiple visits, but in all cases VA will authorize only the care that it deems necessary as part of a course of treatment. If a non-VA health care provider believes that a veteran needs additional care outside the scope of the authorized course of treatment, the health care provider must contact VA prior to administering such care to ensure that this care is authorized and therefore will be paid for by VA. Whether additional care constitutes a new “episode of care” will continue to be a clinical determination made by VA on a case-by-case basis. VA anticipates that the vendors that administer the Choice Program will require additional time after the effective date of this interim final rule to fully integrate this revision into their administrative functions. VA will work with the vendors that administer the Choice Program to ensure that care under the Choice Program is authorized in accordance with this rulemaking, even as the administrative functions of these vendors continue to change to accommodate this revision.

Section 4005(d) of Public Law 114-41 amended section 101(b)(2)(A) of the Choice Act to create eligibility for veterans that are unable to be scheduled for an appointment within “the period determined necessary for [clinically necessary] care or services if such period is shorter than” VHA's wait time goals. Sec. 4005(d), Public Law 114-41, 129 Stat. 443. This new wait-times based criterion is added as paragraph (b)(1)(ii) of § 17.1510, and creates eligibility when VA clinically determines that a veteran requires care within a period of time that is shorter than 30 days from the date an appointment is deemed clinically appropriate by a VA health care provider, or shorter than 30 days from the date that a veteran prefers to be seen.

Section 4005(e) of Public Law 114-41 amended section 101(b)(2)(B) of the Choice Act to modify the 40-mile distance eligibility criterion. Section 101(b)(2)(B)(i)-(ii) of the Choice Act now provides that veterans may be eligible if they reside more than 40 miles from “(i) with respect to a veteran who is seeking primary care, a medical facility of the Department, including a community-based outpatient clinic, that is able to provide such primary care by a full-time primary care physician; or (ii) with respect to a veteran not covered under clause (i), the medical facility of the Department, including a community-based outpatient clinic, that is closest to the residence of the veteran.” We find it would be impracticable to apply a “seeking primary care” eligibility criterion as literally written in the Act. Many individuals that seek VA care generally do not specifically “seek” primary care, but rather “seek” treatment for a specific complaint, and are directed first to primary care for the very purpose of determining what health care needs must be addressed. For instance, a veteran who is eligible for the Program and who seeks VA care for a complaint of generalized back pain would in most cases be directed first to primary care and not immediately to an orthopedist or chiropractor. Under a strict reading of the phrase “seeking primary care” in section 4005(e) of Public Law 114-41, such a veteran might not be considered eligible under the new section 101(b)(2)(B)(i) criterion because they did not specifically “seek” primary care.

Rather than make this distinction, between those veterans “seeking primary care” and those not “seeking primary care,” we interpret section 4005(e) of Public Law 114-41 as a clarification of the eligibility criterion for the 40-mile distance determination. Effectively, this would raise the threshold for what constitutes a qualifying VA medical facility to include only those facilities with at least a full-time primary care physician. For instance, previously, if a veteran lived 10 miles from a VA-community based outpatient clinic (CBOC) that did not have a full-time primary care physician, but lived 50 miles from another VA medical facility that did, the veteran would not be eligible for the Program because of their proximity to the CBOC. Under this interim final rule, however, that veteran would be eligible for the Program because the nearest VA medical facility with a full-time primary care physician is more than 40 miles away. We therefore do not revise the general 40-mile requirement in § 17.1510(b)(1), but do revise § 17.1505 to add a definition of “full-time primary care physician,” as well as amend the definition of “VA medical facility” to require that such a facility have a full-time primary care physician. We note that “full-time primary care physician” will mean at least one individual physician whose workload, or multiple physicians whose combined workload, equates to a 0.9 full time equivalent employee that works at least 36 clinical work hours per week. This definition's requirement that 36 of the 40 hours must be clinical is reasonable to ensure that for purposes of determining eligibility for the Veterans Choice Program, we are taking into account how much clinical work, as opposed to administrative work, a physician actually performs. VA updates full-time equivalent employee data for primary care physicians on a regular basis, and will use such data when making these determinations.

Not distinguishing between those veterans that are “seeking primary care” and other veterans is additionally more veteran-centric because we find that a veteran's access to specialty care can be as important as their access to primary care, and in a majority of cases if a veteran lives more than 40 miles from a VA medical facility with a full-time primary care physician, it is very likely that such veteran also lives more than 40 miles away from a VA medical facility that would be able to provide the vast majority of specialty care that we know our veteran population requires. Lastly, if VA did distinguish between those veterans that are “seeking primary care” versus all other veterans who otherwise live more than 40 miles from a VA facility with a full-time primary care physician, this may have the effect of creating an unintentional back door for veteran eligibility in the Program, whereby veterans might be directed to seek primary care to be determined eligible, when such veterans may not actually need primary care. This interpretation gives effect to section 4005(e) of Public Law 114-41 by accounting for those veterans that would be specifically “seeking primary care” and that live more than 40 miles from a VA facility with a full-time primary care physician, as well as for those veterans seeking care generally that live more than 40 miles from a VA facility with a full-time primary care physician.

Section 4005(c) of Public Law 114-41 amended sections 101(a)(1)(B) and 101(d) of the Choice Act to permit VA to expand provider eligibility beyond those providers expressly listed in section 101(a)(1)(B) of the Choice Act, in accordance with criteria as established by VA. Sec. 4005(c), Public Law 114-41, 129 Stat. 443. Under the authority of sections 101(a)(1)(B)(v) and 101(d)(5) of the Choice Act, we revise § 17.1530(a) to refer to a new paragraph (e) that will establish eligibility for these other providers, and add a new paragraph (e) to § 17.1530 to list these providers specifically. We also revise paragraph (d) to reorganize current requirements and add new requirements for these providers, in accordance with section 101(d)(5) of the Choice Act. We revise paragraph (d) to retain all requirements related to provider credentialing and licensure, as well as the annual provision to VA of documentation of such requirements, in new paragraph (d)(1)(A). We add paragraph (d)(1)(B) to require that all providers not be excluded from participation in a Federal health care program, as defined in particular sections of the Social Security Act, as well as not be listed as excluded sources or excluded providers or entities in databases and lists maintained under certain Federal programs (such as the System for Award Management or the List of Excluded Individuals and Entities that is maintained by the U.S. Department of Health and Human Services). These requirements in § 17.1530(d)(1)(B) ensure that providers that would participate in the Program are not those that are otherwise excluded from participating in Federal health care programs for a number of reasons, such as being convicted of criminal Medicare or Medicaid fraud, patient abuse or neglect, or felony convictions for other health care-related fraud, theft, or other financial misconduct. Lastly, new paragraph (d)(2) maintains the current requirement that eligible entities must ensure that their providers meet the standards established in § 17.1530(d).

Paragraph 17.1530(e) will specifically add new eligible providers for the Veterans Choice Program. Paragraph (e)(1) of § 17.1530 adds to the list of eligible providers any health care provider that is participating in a State Medicaid plan under title XIX of the Social Security Act (42 U.S.C. 1396 et seq.), including any physician furnishing services under such program, if the provider has an agreement under a State plan under title XIX of such Act (42 U.S.C. 1396 et seq.) or a waiver of such a plan. Opening eligibility to Medicaid providers will increase VA's ability to offer certain services under the Program, including dental services (for veterans otherwise eligible for VA dental care) as well as some unskilled home health services, because providers of such services are not typically one of the provider types listed in section 101(a)(1)(B)(i)-(iv) of the Choice Act. We note that these services such as dental care and certain home health services are already considered “medical services” that VA is authorized to furnish under the Choice Act as well as under other statutory authorities that permit VA to provide non-VA care to veterans. See 38 U.S.C. 1703 and 38 U.S.C. 8153. Making Medicaid providers eligible under the Veterans Choice Program therefore does not newly authorize the provision of services to veterans generally, but merely expands services offered under the Veterans Choice Program specifically by expanding the pool of potential Choice providers.

Paragraph (e)(2) will make certain providers of extended care services eligible, namely an Aging and Disability Resource Center, an area agency on aging, or a State agency (as defined in section 102 of the Older Americans Act of 1965 (42 U.S.C. 3002)), or a center for independent living (as defined in section 702 of the Rehabilitation Act of 1973 (29 U.S.C. 796a)). Paragraph (e)(3) of § 17.1530 will establish eligibility for any provider meeting all requirements of § 17.1530(d) that is not listed in section 101(a)(1)(B)(i)-(iv) of the Choice Act or § 17.1530(e)(1)-(e)(2). This is essentially a flexible provision for these regulations so that VA can furnish care under the Program through providers who do not fall into the specific categories listed in section 101(a)(1)(B)(i)-(iv) of the Choice Act or § 17.1530(e)(1)-(e)(2), but satisfy the requirements in § 17.1530(d) to ensure that the provider is skilled and safe to provide services to veterans. This avoids the possible scenario that future required revisions to § 17.1530(e) would create delays in care being provided to veterans under the Program.

To ensure that VA had the resources in place to support care for eligible veterans, the November 2014 interim final rule established different start dates for eligible veterans in § 17.1525 so that implementation of the Program could be phased in. Because the start dates in § 17.1525 have already passed, we remove the language in § 17.1525 to include the section header, but retain § 17.1525 and mark it is as reserved for future use.

The Secretary of Veterans Affairs finds under 5 U.S.C. 553(b)(B) that there is good cause that advance notice and opportunity for public comment are impracticable, unnecessary, or contrary to the public interest and under 5 U.S.C. 553(d)(3) that there is good cause to publish this rule with an immediate effective date. Section 101(n) of the Choice Act authorized VA to implement the Veterans Choice Program through an interim final rule, and provided a deadline of no later than November 5, 2014, the date that is 90 days after the date of the enactment of the law. Additionally, the Program is only authorized to run until August 7, 2017, or until funds expire, which creates a need for expedited action. The changes made by the Construction Authorization and Choice Improvement Act included an immediate effective date under section 3(b) of that Act. These provisions clearly demonstrate that Congress intended that VA act quickly in expanding access to non-VA care options.

This interim final rule changes the criteria VA may consider when determining if a veteran faces an unusual or excessive burden in traveling to the nearest VA medical facility. This interim final rule also expands eligibility for veterans in other ways (through the new criteria related to wait times and to the distance requirements), as well as expands eligibility for providers as required and permitted by the most recent amendments to the Choice Act. These changes will increase the number of veterans who are eligible for the Veterans Choice Program. In order for these veterans to have access to needed health care under the Program, it is essential that the revised criteria be made effective as soon as possible. For the above reasons, we are issuing this rule as an interim final rule. However, VA will consider and address comments that are received within 120 days of the date this interim final rule is published in the Federal Register.

Title 38 of the Code of Federal Regulations, as revised by this interim final rule, represents VA's implementation of its legal authority on this subject. Other than future amendments to this regulation or governing statutes, no contrary guidance or procedures are authorized. All existing or subsequent VA guidance must be read to conform with this rulemaking if possible or, if not possible, such guidance is superseded by this rulemaking.

Although this action contains provisions constituting collections of information, at 38 CFR 17.1530(d), under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521), no new or proposed revised collections of information are associated with this interim final rule. The information collection requirements for § 17.1530(d) are currently approved by the Office of Management and Budget (OMB) and have been assigned OMB control number 2900-0823.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 12866 (Regulatory Planning and Review) defines a “significant regulatory action,” requiring review by OMB, unless OMB waives such review, as “any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.”

The economic, interagency, budgetary, legal, and policy implications of this regulatory action have been examined, and it has been determined that this is an economically significant regulatory action under Executive Order 12866. VA's regulatory impact analysis can be found as a supporting document at http://www.regulations.gov, usually within 48 hours after the rulemaking document is published. Additionally, a copy of the rulemaking and its regulatory impact analysis are available on VA's Web site at http://www.va.gov/orpm/, by following the link for “VA Regulations Published From FY 2004 Through Fiscal Year to Date.”

This regulatory action is a major rule under the Congressional Review Act, 5 U.S.C. 801-08, because it may result in an annual effect on the economy of $100 million or more. Although this regulatory action constitutes a major rule within the meaning of the Congressional Review Act, 5 U.S.C. 804(2), it is not subject to the 60-day delay in effective date applicable to major rules under 5 U.S.C. 801(a)(3) because the Secretary finds that good cause exists under 5 U.S.C. 808(2) to make this regulatory action effective on the date of publication, consistent with the reasons given for the publication of this interim final rule. In accordance with 5 U.S.C. 801(a)(1), VA will submit to the Comptroller General and to Congress a copy of this regulatory action and VA's Regulatory Impact Analysis.

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any 1 year. This interim final rule will have no such effect on State, local, and tribal governments, or on the private sector.

The Secretary hereby certifies that this interim final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This interim final rule will not have a significant economic impact on participating eligible entities and providers who enter into agreements with VA. To the extent there is any such impact, it will result in increased business and revenue for them. We also do not believe there will be a significant economic impact on insurance companies, as claims will only be submitted for care that will otherwise have been received whether such care was authorized under this Program or not. Therefore, pursuant to 5 U.S.C. 605(b), this rulemaking is exempt from the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604.

The Catalog of Federal Domestic Assistance numbers and titles for the programs affected by this document are as follows: 64.007, Blind Rehabilitation Centers; 64.008, Veterans Domiciliary Care; 64.009, Veterans Medical Care Benefits; 64.010, Veterans Nursing Home Care; 64.011, Veterans Dental Care; 64.012, Veterans Prescription Service; 64.013, Veterans Prosthetic Appliances; 64.014, Veterans State Domiciliary Care; 64.015, Veterans State Nursing Home Care; 64.016, Veterans State Hospital Care; 64.018, Sharing Specialized Medical Resources; 64.019, Veterans Rehabilitation Alcohol and Drug Dependence; 64.022, Veterans Home Based Primary Care; and 64.024, VA Homeless Providers Grant and Per Diem Program.

The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Robert L. Nabors II, Chief of Staff, Department of Veterans Affairs, approved this document on October 9, 2015, for publication.

For the reasons set forth in the preamble, VA amends 38 CFR part 17 as follows:

Regulations implemented under the authority of the Atlantic Tunas Convention Act (ATCA; 16 U.S.C. 971 et seq.) and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act; 16 U.S.C. 1801 et seq.) governing the harvest of BFT by persons and vessels subject to U.S. jurisdiction are found at 50 CFR part 635. Section 635.27 subdivides the U.S. BFT quota recommended by the International Commission for the Conservation of Atlantic Tunas (ICCAT) among the various domestic fishing categories, per the allocations established in the 2006 Consolidated Highly Migratory Species Fishery Management Plan (2006 Consolidated HMS FMP) (71 FR 58058, October 2, 2006), as amended by Amendment 7 to the 2006 Consolidated HMS FMP (Amendment 7) (79 FR 71510, December 2, 2014). NMFS is required under ATCA and the Magnuson-Stevens Act to provide U.S. fishing vessels with a reasonable opportunity to harvest the ICCAT-recommended quota.

Earlier this year, NMFS implemented a final rule that increased the U.S. BFT quota and subquotas per ICCAT Recommendation 14-05 (80 FR 52198, August 28, 2015). The base quota for the General category is 466.7 mt. See § 635.27(a). Each of the General category time periods (January, June through August, September, October through November, and December) is allocated a portion of the annual General category quota. Although it is called the “January” subquota, the regulations allow the General category fishery under this quota to continue until the subquota is reached or March 31, whichever comes first. Based on the General category base quota of 466.7 mt, the subquotas for each time period are as follows: 24.7 mt for January; 233.3 mt for June through August; 123.7 mt for September; 60.7 mt for October through November; and 24.3 mt for December. Any unused General category quota rolls forward within the fishing year, which coincides with the calendar year, from one time period to the next, and is available for use in subsequent time periods. To date this year, NMFS has published four inseason quota transfers that have adjusted and distributed the available 2015 Reserve category quota among other quota categories (80 FR 7547, February 22, 2015; 80 FR 45098, July 29, 2015; 80 FR 46516, August 5, 2015; and 80 FR 68265, November 4, 2015). The Reserve category balance currently is 82.1 mt. The adjusted General category quota, following the four inseason actions, is 566.7 mt.

The 2015 General category fishery was open January 1, 2015, through March 31, 2015, reopened June 1, 2015, and remains open until December 31, 2015, or until the General category quota is reached, whichever comes first.

Under § 635.27(a)(9), NMFS has the authority to transfer quota among fishing categories or subcategories, after considering determination criteria provided under § 635.27(a)(8), including five new criteria recently added in Amendment 7. The determination criteria are: The usefulness of information obtained from catches in the particular category for biological sampling and monitoring of the status of the stock; the catches of the particular category quota to date and the likelihood of closure of that segment of the fishery if no adjustment is made; the projected ability of the vessels fishing under the particular category quota to harvest the additional amount of BFT before the end of the fishing year; the estimated amounts by which quotas for other gear categories of the fishery might be exceeded; effects of the adjustment on BFT rebuilding and overfishing; effects of the adjustment on accomplishing the objectives of the fishery management plan; variations in seasonal distribution, abundance, or migration patterns of BFT; effects of catch rates in one area precluding vessels in another area from having a reasonable opportunity to harvest a portion of the category's quota; review of dealer reports, daily landing trends, and the availability of the BFT on the fishing grounds; optimizing fishing opportunity; accounting for dead discards, facilitating quota monitoring, supporting other fishing monitoring programs through quota allocations and/or generation of revenue; and support of research through quota allocations and/or generation of revenue.

NMFS has considered the determination criteria regarding inseason adjustments and their applicability to the General category fishery for the end of 2015, including, but not limited to, the following: Regarding the usefulness of information obtained from catches in the particular category for biological sampling and monitoring of the status of the stock, biological samples collected from BFT landed by General category fishermen and provided by tuna dealers continue to provide NMFS with valuable parts and data for ongoing scientific studies of BFT age and growth, migration, and reproductive status. Additional opportunity to land BFT would support the collection of a broad range of data for these studies and for stock monitoring purposes.

NMFS also considered the catches of the General category quota to date and the likelihood of closure of that segment of the fishery if no adjustment is made; the projected ability of the vessels fishing under the particular category quota to harvest the additional amount of bluefin tuna before the end of the fishing year; and the estimated amounts by which quotas for other gear categories of the fishery might be exceeded. General category landings in the winter BFT fishery, which typically begins in December or January each year, are highly variable and depend on availability of commercial-sized BFT to participants. Commercial-sized BFT continue to be landed by General category vessels.

Without a quota transfer at this time, NMFS would have to close the 2015 General category fishery as the currently available General category quota would be reached shortly. As of November 20, 2015, the General category has landed approximately 550 mt, or 97 percent of its available 2015 quota of 566.7 mt. Overall, approximately 79 percent of the total of the commercial BFT subquotas for 2015 has been harvested. NMFS will need to account for 2015 landings and dead discards within the adjusted U.S. quota, consistent with ICCAT recommendations, and anticipates having sufficient quota to do that even with this transfer. This quota transfer would provide additional opportunities to harvest the U.S. bluefin quota without exceeding it, while preserving the opportunity for General category fishermen to participate in the winter BFT fishery.

Another principal consideration is the objective of providing opportunities to harvest the full annual U.S. BFT quota without exceeding it based on the goals of the 2006 Consolidated HMS FMP and Amendment 7, including to achieve optimum yield on a continuing basis and to optimize the ability of all permit categories to harvest their full BFT quota allocations. This transfer would be consistent with the quotas recently established and analyzed in the Atlantic bluefin tuna quota final rule (80 FR 52198, August 28, 2015) and with objectives of the 2006 Consolidated HMS FMP and amendments, and is not expected to negatively impact stock health or to affect the stock in ways not already analyzed in those documents.

Based on the considerations above, NMFS is transferring 80 mt of Reserve category quota to the General category for the remainder of 2015, resulting in adjusted General and Reserve category quotas for 2015 of 646.7 mt and 2.1 mt, respectively. NMFS will close the 2015 General category fishery when the adjusted General category quota of 646.7 mt has been reached, or it will close automatically on December 31, 2015.

Under § 635.23(a)(4), NMFS may increase or decrease the daily retention limit of large medium and giant BFT over a range of zero to a maximum of five per vessel based on consideration of the relevant criteria provided under § 635.27(a)(8), and listed above. For the 2015 fishing year, NMFS adjusted the daily retention limit from the default level of one large medium or giant BFT to three large medium or giant BFT for the January subquota period (79 FR 77943, December 29, 2014), which closed March 31, 2015; and four large medium or giant BFT for the June through August period (80 FR 27863, May 15, 2015) as well as the September, October through November, and December periods (80 FR 51959, August 27, 2015). NMFS has considered the relevant criteria and their applicability to the General category BFT retention limit for the remainder of the fishing year. These considerations include, but are not limited to, the following:

Regarding the usefulness of information obtained from catches in the particular category for biological sampling and monitoring of the status of the stock, additional opportunity to land bluefin tuna would support the collection of a broad range of data for the biological studies and for stock monitoring purposes. Regarding the effects of the adjustment on BFT rebuilding and overfishing and the effects of the adjustment on accomplishing the objectives of the fishery management plan, this action would be taken consistent with the previously implemented and analyzed quotas, and it is not expected to negatively impact stock health or otherwise affect the stock in ways not previously analyzed. It is also supported by the Environmental Analysis for the 2011 final rule regarding General and Harpoon category management measures, which established the current range over which NMFS may set the General category daily retention limit (i.e., from zero to five fish (76 FR 74003, November 30, 2011)). As described above, a principal consideration is the objective of providing opportunities to harvest the full annual U.S. BFT quota without exceeding it based on the goals of the 2006 Consolidated HMS FMP and Amendment 7.

Based on these considerations, NMFS has determined that a three-fish General category retention limit is warranted for the remainder of the year. It would provide a reasonable opportunity to harvest the U.S. quota of BFT without exceeding it, while maintaining an equitable distribution of fishing opportunities, help optimize the ability of the General category to harvest its available quota, allow collection of a broad range of data for stock monitoring purposes, and be consistent with the objectives of the 2006 Consolidated HMS FMP and amendments. Therefore, NMFS adjusts the General category retention limit from four to three large medium or giant BFT per vessel per day/trip, effective November 25, 2015 through December 31, 2015.

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

NMFS will continue to monitor the BFT fishery closely. Dealers are required to submit landing reports within 24 hours of a dealer receiving BFT. General, HMS Charter/Headboat, Harpoon, and Angling category vessel owners are required to report the catch of all BFT retained or discarded dead, within 24 hours of the landing(s) or end of each trip, by accessing hmspermits.noaa.gov. Depending on the level of fishing effort and catch rates of BFT, NMFS may determine that additional adjustment or closure is necessary to ensure available quota is not exceeded or to enhance scientific data collection from, and fishing opportunities in, all geographic areas. If needed, subsequent adjustments will be published in the Federal Register. In addition, fishermen may call the Atlantic Tunas Information Line at (978) 281-9260, or access hmspermits.noaa.gov, for updates on quota monitoring and inseason adjustments.

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

The regulations implementing the 2006 Consolidated HMS FMP and amendments provide for inseason retention limit adjustments to respond to the unpredictable nature of BFT availability on the fishing grounds, the migratory nature of this species, and the regional variations in the BFT fishery. Affording prior notice and opportunity for public comment to implement the quota transfer and daily retention limit for the remainder of the year is impracticable as NMFS is reacting as quickly as possible to updated data and information that then requires immediate action to be effective on the fishing grounds. NMFS could not effectively react to this data if, in implementing the retention limit, it allowed a public comment period, which, as it relates to quota transfers, would preclude fishermen from harvesting BFT that are legally available consistent with all of the regulatory criteria.

Delays in adjusting the retention limit may result in the available quota being met or exceeded and NMFS needing to close the fishery earlier than otherwise would be necessary under a lower limit. This could adversely affect those General and HMS Charter/Headboat category vessels that would otherwise have an opportunity to harvest BFT under retention limits set in response to the most recent data available. Limited opportunities to harvest the respective quotas may have negative social and economic impacts for U.S. fishermen that depend upon catching the available quota within the designated time periods. Adjustment of the retention limit needs to be effective as soon as possible, to extend fishing opportunities for fishermen in geographic areas with access to the fishery only during this time period. Therefore, the AA finds good cause under 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment. For these reasons, there is good cause under 5 U.S.C. 553(d) to waive the 30-day delay in effectiveness.

This action is being taken under §§ 635.23(a)(4) and 635.27(a)(9), and is exempt from review under Executive Order 12866.

The Atlantic commercial shark fisheries are managed under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). The 2006 Consolidated Highly Migratory Species (HMS) Fishery Management Plan (FMP) and its amendments are implemented by regulations at 50 CFR part 635. For the Atlantic commercial shark fisheries, the 2006 Consolidated HMS FMP and its amendments established, among other things, commercial shark retention limits, commercial quotas for species and management groups, accounting measures for under- and overharvests for the shark fisheries, and adaptive management measures such as flexible opening dates for the fishing season and inseason adjustments to shark trip limits, which provide management flexibility in furtherance of equitable fishing opportunities, to the extent practicable, for commercial shark fishermen in all regions and areas.

On August 18, 2015 (80 FR 49974), NMFS published a rule proposing the 2016 opening dates for the Atlantic commercial shark fisheries and quotas, based on shark landings information reported as of July 15, 2015. The August 2015 proposed rule contains details that are not repeated here. The comment period on the proposed rule ended on September 17, 2015.

During the comment period, NMFS received several written and oral comments on the proposed rule. Those comments, along with the Agency's responses, are summarized below. As further detailed in the Response to Comments section, after considering all the comments, NMFS is opening the fishing seasons for all shark management groups on January 1, 2016, as proposed in the August 18, 2015, proposed rule. For directed shark limited access permit holders, the Gulf of Mexico blacktip, aggregated LCS, and hammerhead management groups will start the fishing season with a retention limit of 45 LCS other than sandbar sharks per vessel per trip. The aggregated LCS and hammerhead shark management groups in the Atlantic region will start the fishing season with a retention limit of 36 LCS other than sandbar sharks per vessel per trip for directed shark limited access permit holders, which is a change from the proposed rule. Also, some of the quotas have changed since the proposed rule, based on updated landings information as of October 16, 2015. The retention limit for incidental shark limited access permit holders has not changed and remains at 3 LCS other than sandbar sharks per trip and a combined total of 16 small coastal sharks (SCS) and pelagic sharks, combined, per trip, consistent with § 635.24(a)(3) and (4).

This final rule serves as notification of the 2016 opening dates of the Atlantic commercial shark fisheries and 2016 quotas, based on shark landings updated as of October 16, 2015, pursuant to the “opening commercial fishing season” criteria at § 635.27(b)(3)(i) through (vii). This action does not change the annual base commercial quotas established under the 2006 Consolidated HMS FMP and its amendments for any shark management group. Any such changes would be performed through a separate action. Rather, this action adjusts the annual base commercial quotas for 2016 based on over- and/or underharvests that occurred in 2015 and previous fishing seasons, consistent with existing regulations.

NMFS received 6 written comments on the proposed rule from fishermen, dealers, and other interested parties. All written comments can be found at http://www.regulations.gov/ by searching for RIN 0648-XD898. NMFS received approximately 5 oral comments which were received through phone conversations. All of the oral comments are incorporated with the written comments below.

Comment 1: NMFS received several comments regarding the proposed opening date for the aggregated LCS and hammerhead management groups in the Atlantic region. The North Carolina Division of Marine Fisheries (NCDMR) and other commenters from the southern and northern part of the region supported the proposed opening date of January 1 for the aggregated LCS and hammerhead management groups, retention limit, and inseason retention limit adjustments for LCS fisheries as long as the majority of the quota is available later in the year. The comments from some of the fishermen supporting the January 1 opening date noted they preferred the opportunity to land some LCS that were caught while targeting SCS and other non-shark species rather than discard them if the season is closed in January. NMFS also received a few comments regarding the timing for the inseason retention limit adjustment. One commenter supported the January 1 opening date with reducing the retention limit on March 1 to incidental levels (3 LCS other than sandbar sharks per vessel per trip) before increasing the retention limit on August 1 to 55 LCS other than sandbar sharks per vessel per trip. Another commenter supported the January 1 opening date until 50 percent of the quota is reached before reducing the retention limit to incidental levels and then increasing the retention limit on July 1 to 55 LCS other than sandbar sharks per vessel per trip. NMFS also received comments opposing the proposed opening date of January 1 with inseason retention limit adjustments. The Commonwealth of Virginia Marine Resources Commission requested a June or July opening date for the LCS fisheries to allow their state-water fishermen an opportunity to fish for sharks under the proposed retention limit, while other commenters suggested a July 1 LCS fishery opening date at the proposed retention limit with no inseason retention limit adjustments. The comments from some of the fishermen in the southern part of the region noted they preferred the opportunity to fish for sharks in October through December because they participate in other, non-shark fisheries at the beginning of the year and in the shark fisheries later in the year, when there are no other fisheries open in Florida. Also, these commenters are concerned that having the LCS fisheries in the Atlantic and Gulf of Mexico regions open at the same time will flood the market with shark products, causing a dramatic drop in potential revenue.

Response: NMFS evaluates the “opening commercial fishing season” criteria (§ 635.27(b)(3)) when choosing an opening date. These criteria include: (1) The available annual quotas for the current fishing season for the different species/management groups based on any over- and/or underharvests experienced during the previous commercial shark fishing seasons; (2) estimated season length based on available quota(s) and average weekly catch rates of different species and/or management group from the previous years; (3) length of the season for the different species and/or management group in the previous years and whether fishermen were able to participate in the fishery in those years; (4) variations in seasonal distribution, abundance, or migratory patterns of the different species/management groups based on scientific and fishery information; (5) effects of catch rates in one part of a region precluding vessels in another part of that region from having a reasonable opportunity to harvest a portion of the different species and/or management quotas; (6) effects of the adjustment on accomplishing the objectives of the 2006 Consolidated HMS FMP and its amendments; and/or (7) effects of a delayed opening with regard to fishing opportunities in other fisheries.

After evaluating these criteria, as described in the proposed rule, and reviewing the public comments, NMFS has decided to open the fisheries in the Atlantic region with a lower retention limit than proposed. Specifically, on January 1, 2016, the LCS fisheries in the Atlantic region will open with a retention limit of 36 LCS other than sandbar sharks per vessel per trip for directed shark limited access permit holders. NMFS has determined that a lower retention limit at the start of the season will allow NMFS to more easily and closely monitor the quota and catch rates in the beginning of the year to help ensure equitable fishing opportunities later in the year. NMFS chose 36 LCS other than sandbar sharks per vessel per trip because that was the commercial retention limit for the fishery from 2013 through August 2015, and thus is familiar to both NMFS and the participants in the fishery.

The proposed rule stated that, if it appears that the quota is being harvested too quickly to allow fishermen throughout the entire region an opportunity to fish, NMFS will reduce the commercial retention limit after a portion of the quota is harvested (e.g., 30 percent) and then raise the commercial retention limit at a later date (e.g., July 1 or 15) to allow greater fishing opportunities later in the year. Reducing the retention limit when 50 percent of the quota has been harvested, as suggested by a commenter, would likely not allow for fishing opportunities later in the year when the majority of the fishing occurs. Under § 635.28(b), NMFS closes any shark management group that has reached, or is projected to reach, 80 percent of the available quota. After considering public comment, NMFS believes that it is more appropriate to consider a retention limit reduction, when approximately 20 percent of the quota has been harvested (which is expected to occur in March or April, based on landings data from prior years). Any such action will depend on consideration of the factors under § 635.24(a)(8). If catch rates and landings are similar to past years, NMFS anticipates that it could reduce the retention limit to 3 LCS other than sandbar sharks, which is consistent with the retention limit for incidental limited access permit holders, when the 20 percent is reached. However, if the quota is being landed quickly at the beginning of the year, or if, after reducing the retention limit, the reduction to 3 LCS other than sandbar sharks does not slow the rate of harvest enough to allow for a fishery later in the year, NMFS could reduce the retention limit to 0. Alternatively, if the quota is being landed slowly, NMFS could choose not to reduce the retention limit, or not to reduce it all the way down to 3.

After considering public comment, NMFS anticipates that it will increase the commercial retention limit around July 15, 2016, as this was the date used for prior season opening dates. The retention limit will be the default level of 45 LCS other than sandbar sharks per vessel per trip for directed shark limited access permit holders, or another amount, as deemed appropriate after considering the inseason trip limit adjustment criteria (§ 635.24(a)(8)). NMFS believes that utilizing the inseason retention limit adjustment during the fishing season will promote equitable fishing opportunities in the Atlantic region, while still allowing the majority of quota to be harvested later in the year. The January 1 opening date should allow fishermen in the southern and northern portions of the Atlantic region the opportunity to fish at the beginning of the year, while providing all fishermen in the Atlantic region fishing opportunities later in the year, when the majority of fishing occurs, as the majority of the quota will still be available.

Regarding the comments from constituents suggesting when to adjust the retention limit, NMFS intends to reduce the retention limit to 3 LCS other than sandbar sharks per vessel per trip if the quota is being caught too quickly (e.g., if approximately 20 percent of the quota is harvested at the beginning of the year), and then anticipates that it will increase the retention limit to the default level of 45 LCS other than sandbar sharks per vessel per trip for directed shark limited access permit holders, or another amount, as deemed appropriate after considering the inseason trip limit adjustment criteria, around July 15, 2016. If NMFS were to reduce the retention limit when approximately 20 percent of the quota is harvested, based on past landings data, the aggregated LCS quota will likely reach 20 percent around March, which is similar to the time suggested by a commenter. Regarding an increase on August 1, NMFS will determine any potential increase in the retention limit at a later time, but notes that an increase around July 15 would be closer to recent opening dates of the fishery than August 1 and could better promote equitable fishing opportunities. Regarding the comment to wait until 50 percent of the quota was harvested before reducing the retention limit and then increasing the retention limit on July 1, when the Atlantic LCS fisheries last opened in January, the quota reached 50 percent in July. Thus, under that scenario, it is unlikely that any adjustment would be needed until much later in the season (e.g., August). In addition, under § 635.28(b), NMFS closes any shark management group that has reached, or is projected to reach, 80 percent of the available quota. Thus, waiting until 50 percent of the quota has been harvested before reducing the retention limit would likely prevent the majority of the quota from being available later in the year, which is what most of the public comments requested.

Regarding the comments from the Commonwealth of Virginia Marine Resources Commission and other commenters requesting an opening date in June or July in order to allow state-water fishermen the opportunity to fish and regarding the comments from constituents who prefer a later start date in order to fish for sharks at the end of the year, NMFS agrees that the fishery should remain open later in the year and anticipates having the majority of the quota available after July 15, 2016. Based on past landings data, having the majority of the quota available after July 15 would allow Virginia state-water fishermen the opportunity to fish for sharks and potentially allow the fishery to be open in October through December. Regarding the comments that having the LCS fisheries in the Atlantic and Gulf of Mexico regions open at the same time will impact the market prices, NMFS has no control over the market prices and this is not one of the criteria NMFS evaluates when choosing an opening date. However, in the past, the LCS fisheries in the Atlantic and Gulf of Mexico regions have been open at the same time, and during those times, NMFS has not noticed any dramatic impacts on the ex-vessel prices in either region. For example, in 2013, when both regional LCS fisheries were open in January, the ex-vessel price for Atlantic aggregated LCS stayed consistent throughout the year and was much higher than the Gulf of Mexico aggregated LCS ex-vessel prices.

Comment 2: NMFS received comments regarding the proposed sub-regional opening dates and commercial retention limit for the Gulf of Mexico blacktip, aggregated LCS, and hammerhead management groups. One commenter supported the proposed January 1 opening date for both Gulf of Mexico sub-regions and the proposed retention limit, suggesting that NMFS use this season as an experiment to see how the fishery operates under the new management measures from Amendment 6 to the 2006 Consolidated HMS FMP (Amendment 6). Another commenter suggested staggering the Gulf of Mexico sub-regional opening dates and increasing the retention limit. Specifically, the commenter suggested that both sub-regions open at 55 LCS other than sandbar sharks per vessel per trip, with the western Gulf of Mexico sub-region opening on January 1 and the eastern Gulf of Mexico sub-region opening on March 1.

Response: After considering public comment and the “opening commercial fishing season” criteria (§ 635.27(b)(3)) described in the proposed rule, NMFS has determined that opening the Gulf of Mexico blacktip, aggregated LCS, and hammerhead shark management groups on January 1 at 45 LCS other than sandbar sharks per vessel per trip for directed shark limited access permit holders, as proposed, will promote equitable fishing opportunities for constituents in each sub-region. In reaching this determination, NMFS considered, in particular, the length of the season for the different species and/or management groups in 2015 and whether fishermen were able to participate in the fishery (§ 635.27(b)(3)(iii)), and found that with a January 1 opening date in 2015, the length of the fishing season provided all fishermen with equitable fishing opportunities to participate in the fishery in 2015.

Regarding the comment relating to the different sub-regional opening dates, at this time, NMFS prefers to open both sub-regions at the same time to evaluate how the changes in the regulations, such as the increase in the retention limit, affect the fishery before making other changes to the commercial shark fishing season. NMFS may consider staggered opening dates for the sub-regions in future years if such an approach is needed to promote equitable fishing opportunities throughout the region.

Comment 3: NMFS received comments regarding the proposed opening date for the non-blacknose SCS and blacknose shark management groups in the Atlantic region. Most commenters, including NCDMR, supported the proposed January 1 opening date, while only a few commenters requested that the SCS fisheries not open until August to ensure that the southern part of the fishery would not be closed because of the blacknose shark quota linkage.

Response: Taking into consideration the “opening commercial fishing season” criteria (§ 635.27(b)(3)), as described in the proposed rule, and the general public support of the proposed opening date, NMFS has determined that keeping the proposed opening date of January 1 for the non-blacknose SCS and blacknose shark management groups in the Atlantic region will provide commercial shark fishermen year-round access to the increased non-blacknose SCS quota. In reaching this determination, NMFS considered, in particular, the current length of the 2015 season for the different species and/or management groups and whether fishermen were able to participate in the fishery in 2015 (§ 635.27(b)(3)(iii)), and found that with a January 1 opening date in 2015, the length of the fishing season provided all fishermen with equitable fishing opportunities to participate in the fishery in 2015. NMFS still encourages fishermen south of 34 degrees to avoid blacknose sharks to keep the non-blacknose SCS fishery open year-round in that area. NMFS linked these quotas due to concerns regarding the incidental harvest of blacknose sharks, which are overfished, while fishermen were targeting non-blacknose SCS. During the Amendment 3 to the 2006 Consolidated HMS FMP rulemaking process (75 FR 30484; June 1, 2010), fishermen indicated that they could avoid catching blacknose sharks when fishing for non-blacknose sharks. Fishermen successfully avoided blacknose sharks for several years. However, in the past few years, a small number of individuals began targeting blacknose sharks, resulting in early closures.

Comment 4: NMFS received comments to adjust the commercial retention limit for SCS, implement a commercial retention limit for Atlantic blacknose sharks, and establish a bycatch allowance for non-blacknose SCS (approximately 200 lb dw) once the blacknose quota is reached to reduce dead discards of SCS.

Response: This comment is outside the scope of this rulemaking because there is currently no commercial retention limit for blacknose sharks, and the purpose of this rulemaking is to adjust quotas based on over- and underharvests from the previous years and set opening dates for the 2016 shark seasons. The commenter thought that because NMFS was proposing to adjust the commercial retention limit for the LCS fisheries that NMFS could do the same for SCS fisheries. However, at this time, the only retention limit for SCS is for incidental shark permit holders, who can retain up to 16 SCS or pelagic sharks per vessel per trip.

NMFS considered a commercial retention limit for blacknose shark in Amendment 5a to the 2006 Consolidated HMS FMP (see Section 2.3, Alternatives Considered But Not Further Analyzed, of the Final Environmental Impact Statement for Amendment 5a) and received similar comments during the public comment period for Amendment 6. In those actions, NMFS preferred to address blacknose shark landings and discards by linking the blacknose shark and non-blacknose SCS quotas, which should provide a greater and more effective incentive for reducing landings of blacknose sharks than a retention limit, thus more effectively managing the blacknose fishery in a manner that maximizes resource sustainability, while minimizing, to the greatest extent possible, socioeconomic impacts. After the blacknose shark quota was reached much earlier this year (June 7) than in previous seasons (July 28, 2014, and September 30, 2013), NMFS examined the blacknose shark landings from the HMS electronic dealer data from 2015 on a per trip basis. These data indicate that the majority of the trips (60 percent of the total number of trips) landed less than 200 lb dw of blacknose sharks per trip; however, there were multiple trips (11 percent of the total number of trips) that landed more than 700 lb dw of blacknose sharks per trip, with some as high as 3,170 lb dw, which is approximately 8 percent of the entire quota. Because the blacknose shark linkage has caused the SCS fishery south of 34 degrees to close sooner than in previous seasons and given that the commercial quota continues to be overharvested, NMFS is re-considering the appropriateness of a commercial blacknose retention limit and may pursue this issue in a separate action.

Comment 5: NMFS received comments to stop all shark fishing.

Response: This comment is outside the scope of this rulemaking because the purpose of this rulemaking is to adjust quotas for the 2016 shark seasons based on over- and underharvests from the previous years and set opening dates for the 2016 shark seasons. Management of the Atlantic shark fisheries is based on the best available science to achieve optimum yield while also rebuilding overfished shark stocks and preventing overfishing. The final rule does not reanalyze the overall management measures for sharks, which were analyzed in the 2006 Consolidated HMS FMP and its amendments. NMFS is considering further shark management measures, including those to rebuild shark stocks or prevent overfishing, in other upcoming rulemakings, such as Amendments 5b to the 2006 Consolidated HMS FMP.

Comment 6: NMFS received comments from the NCDMR that requested NMFS to perform a benchmark stock assessment on Atlantic blacktip and sandbar sharks as soon as possible.

Response: This comment is outside the scope of this rulemaking because the purpose of this rulemaking is to adjust quotas based on over- and underharvests from the previous years and set opening dates for the 2016 shark seasons. Most of the domestic shark stock assessments follow the SEDAR process. This process is also used by the South Atlantic, Gulf of Mexico, and Caribbean Fishery Management Councils and is designed to provide transparency throughout the stock assessment. With regard to the timing of upcoming shark stock assessments, NMFS aims to conduct a number of shark stock assessments every year and to regularly reassess these stocks. The number of species that can be assessed each year depends on whether assessments are establishing baselines or are only updates to previous assessments. Assessments also depend on ensuring there are data available for a particular species. Tentatively, in addition to the shark assessments being conducted by the International Commission for the Conservation of Atlantic Tunas (ICCAT), NMFS intends to conduct a dusky shark update assessment in 2016 and a Gulf of Mexico blacktip shark update assessment in 2017. NMFS is currently considering options that would allow for both Atlantic blacktip and sandbar sharks to be assessed in 2018.

NMFS made four changes to the proposed rule, as described below.

1. NMFS changed the final eastern Gulf of Mexico blacktip shark quota from the 28.9 mt dw (63,835 lb dw) in the proposed rule to 28.9 mt dw (63,819 lb dw), a difference of 16 lb dw, based on updated landings through October 16, 2015. In the 2016 shark season proposed rule (80 FR 49974; August 18, 2015), which was based on data available through July 17, 2015, the 2016 adjusted annual quota for eastern Gulf of Mexico blacktip shark was proposed to be 28.9 mt dw (63,835 lb dw), based on an underharvest of 0.1 mt dw (308 lb dw) from 2014 and an underharvest of 3.7 mt dw from 2015 (8,088 lb dw). NMFS explained in the proposed rule that it would adjust the proposed quotas based on dealer reports as of mid-October or mid-November 2015. Based on updated landings data through October 16, 2015, the overall 2015 Gulf of Mexico blacktip shark management group underharvest was 37.4 mt dw (82,373 lb dw). Consistent with Amendment 6 and the August 2015 proposed rule, NMFS will account for underharvest based on the sub-regional quota percentage split. Thus, the eastern Gulf of Mexico blacktip shark quota is increased by 9.8 percent of the 2015 underharvest or 3.7 mt dw (8,072 lb dw). Therefore, the 2016 adjusted annual quota for eastern Gulf of Mexico blacktip shark is 28.9 mt dw (63,819 lb dw) (25.1 mt dw annual base quota + 0.1 mt dw from 2014 underharvest + 3.7 mt dw from the 2015 underharvest = 28.9 mt dw). Landings information beyond October 16, 2015, was not available while NMFS was writing this rule. This final rule used the most recent available information to allow NMFS to properly analyze the fishery and open the fishery as proposed on January 1, 2016. Any landings between October 16 and December 31, 2015, will be accounted for in the 2017 shark fisheries quotas, as appropriate.

2. NMFS changed the final western Gulf of Mexico blacktip shark quota from the 266.6 mt dw (587,538 lb dw) in the proposed rule to 266.5 mt dw (587,396 lb dw), a difference of 142 lb dw, based on updated landings through October 16, 2015. In the proposed rule, which was based on data available through July 17, 2015, the 2016 adjusted annual quota for western Gulf of Mexico blacktip shark was proposed to be 266.6 mt dw (587,538 lb dw), based on an underharvest of 1.3 mt dw (2,834 lb dw) from 2014 and an underharvest of 33.7 mt dw (74,443 lb dw) from 2015. Based on updated landings data through October 16, 2015, the overall 2015 Gulf of Mexico blacktip shark management group was underharvested by 37.4 mt dw (82,373 lb dw). Consistent with Amendment 6 and the August 2015 proposed rule, NMFS will account for underharvest based on the sub-regional quota percentage split. Thus, the western Gulf of Mexico blacktip shark quota is increased by 90.2 percent of the 2015 underharvest, or 33.7 mt dw (74,301 lb dw). Therefore, the 2016 adjusted annual quota for eastern Gulf of Mexico blacktip shark is 266.5 mt dw (587,396 lb dw) (231.5 mt dw annual base quota + 1.3 mt dw from 2014 underharvest + 33.7 mt dw from the 2015 underharvest = 266.5 mt dw 2016 adjusted annual quota). As described above, landings information beyond October 16, 2015, was not available while NMFS was writing this rule. This final rule used the most recent available information to allow NMFS to properly analyze the fishery and open the fishery on January 1, 2016. Any landings between October 16 and December 31, 2015, will be accounted for in the 2017 shark fisheries quotas, as appropriate.

3. NMFS changed the final Atlantic blacknose shark quota from the 15.7 mt dw (34,700 lb dw) in the proposed rule to 15.7 mt dw (34,653 lb dw), a difference of 47 lb, based on updated landings through October 16, 2015. In the proposed rule, the quota for the Atlantic blacknose shark management group was proposed to be 15.7 mt dw (34,700 lb dw), due to an adjustment of 0.5 mt dw (1,111 lb dw) for a 2012 overharvest that was spread over five years and an adjustment of 1.0 mt dw (2,110 lb dw) for a 2015 overharvest that was spread over three years. However, based on the updated landings data, NMFS found that the 2015 quota was overharvested by 3.0 mt dw (6,471 lb dw) and not the 6,328 lb dw originally considered. Consistent with the proposed rule, NMFS will spread this overharvest amount over 3 years at 1.0 mt dw (2,157 lb dw) each year from 2016-2018. Thus, NMFS will reduce the 2016 base annual quota by 1.5 mt dw (3,268 lb dw), based on the 2012 overharvest amount and the most recent estimates of the 2015 landings. Therefore, the 2016 adjusted annual quota for Atlantic blacknose shark is 15.7 mt dw (34,653 lb dw) (17.2 mt dw annual base quota − 0.5 mt dw 2012 overharvest − 1.0 mt dw 2015 overharvest = 15.7 mt dw 2016 adjusted annual quota). As described above, landings information beyond October 16, 2015, was not available while NMFS was writing this rule. This final rule used the most recent available information to allow NMFS to properly analyze the fishery and open the fishery on January 1, 2016. Any landings between October 16 and December 31, 2015, will be accounted for in the 2017 shark fisheries quotas, as appropriate.

4. NMFS changed the retention limit for directed shark limited access permit holders at the start of the commercial shark fishing season for the aggregated LCS and hammerhead shark management groups in the Atlantic region from 45 LCS other than sandbar sharks per vessel per trip to 36 LCS other than sandbar sharks per vessel per trip. As explained above, NMFS changed the retention limit after considering the “opening commercial fishing season” criteria (§ 635.27(b)(3)), public comment, and the 2015 landings data in order to promote equitable fishing opportunities throughout the Atlantic region.

This final rule adjusts the 2016 commercial quotas due to over- and/or underharvests in 2015 and previous fishing seasons, based on landings data through October 16, 2015. The 2016 annual quotas by species and species group are summarized in Table 1. All dealer reports that are received by NMFS after October 16, 2015, will be used to adjust the 2017 quotas, if necessary. A description of the quota calculations is provided in the proposed rule and is not repeated here. Any changes are described in the “Changes from the Proposed Rule” section.

Based on the seven “opening commercial fishing season” criteria listed in § 635.27(b)(3), NMFS is opening all the 2016 Atlantic commercial shark fishing seasons on January 1, 2016 (Table 2).

Regarding the LCS retention limit, as shown in Table 2, for directed shark limited access permit holders, the Gulf of Mexico blacktip shark, aggregated LCS, and hammerhead shark management groups will start the commercial fishing season at 45 LCS other than sandbar sharks per vessel per trip, and the Atlantic aggregated LCS and hammerhead shark management groups will start the commercial fishing season at 36 LCS other than sandbar sharks per vessel per trip. In the Atlantic region, as described above, NMFS will closely monitor the quota at the beginning of the year. If it appears that the quota is being harvested too quickly to allow fishermen throughout the entire region an opportunity to fish (e.g., if approximately 20 percent of the quota is caught at the beginning of the year), NMFS will reduce the commercial retention limit, then raise it later in the season. Based on prior years' fishing activity, to allow greater fishing opportunities later in the year, NMFS anticipates raising the commercial retention limit to the default limit of 45 LCS other than sandbar sharks per vessel per trip around July 15, 2016. However, any retention limit reductions and increases will be based on consideration of the trip limit adjustment criteria at 50 CFR 635.24(a)(8).

All of the shark management groups will remain open until December 31, 2016, or until NMFS determines that the fishing season landings for any shark management group has reached, or is projected to reach, 80 percent of the available quota; however, consistent with § 635.28(b)(5), NMFS may close the Gulf of Mexico blacktip shark management group before landings reach, or are expected to reach, 80 percent of the quota. Additionally, NMFS has established non-linked and linked quotas; linked quotas are explicitly designed to concurrently close multiple shark management groups that are caught together to prevent incidental catch mortality from exceeding the total allowable catch. The linked and non-linked quotas are shown in Table 2. NMFS will file for publication with the Office of the Federal Register a notice of closure for that shark species, shark management group including any linked quotas, and/or region that will be effective no fewer than 5 days from date of filing. From the effective date and time of the closure until NMFS announces, via the publication of a notice in the Federal Register, that additional quota is available and the season is reopened, the fisheries for the shark species or management group are closed, even across fishing years.

The NMFS Assistant Administrator has determined that the final rule is consistent with the 2006 Consolidated HMS FMP and its amendments, other provisions of the Magnuson-Stevens Act, and other applicable law.

This final rule is exempt from review under Executive Order 12866.

In compliance with section 604 of the Regulatory Flexibility Act (RFA), NMFS prepared a Final Regulatory Flexibility Analysis (FRFA) for this final rule, which analyzed the adjustments to the Gulf of Mexico blacktip shark, Gulf of Mexico aggregated LCS, and blacknose shark management group quotas based on over- and/or underharvests from the previous fishing season(s). The FRFA analyzes the anticipated economic impacts of the final actions and any significant economic impacts on small entities. The FRFA is below.

Section 604(a)(1) of the RFA requires an explanation of the purpose of the rulemaking. The purpose of this final rulemaking is, consistent with the Magnuson-Stevens Act and the 2006 Consolidated HMS FMP and its amendments, to establish the 2016 Atlantic commercial shark fishing quotas and fishing seasons. Without this rule, the Atlantic commercial shark fisheries would close on December 31, 2015, and would not open until another action was taken. This final rule will be implemented according to the regulations implementing the 2006 Consolidated HMS FMP and its amendments. Thus, NMFS expects few, if any, economic impacts to fishermen other than those already analyzed in the 2006 Consolidated HMS FMP and its amendments. While there may be some direct negative economic impacts associated with the opening dates for fishermen in certain areas, there could also be positive effects for other fishermen in the region. The opening dates were chosen to allow for an equitable distribution of the available quotas among all fishermen across regions and states, to the extent practicable.

Section 604(a)(2) of the RFA requires NMFS to summarize significant issues raised by the public in response to the Initial Regulatory Flexibility Analysis (IRFA), provide a summary of NMFS' assessment of such issues, and provide a statement of any changes made as a result of the comments. The IRFA was done as part of the proposed rule for the 2016 Atlantic Commercial Shark Season Specifications. NMFS did not receive any comments specific to the IRFA. However, NMFS received comments related to the overall economic impacts of the proposed rule, and those comments and NMFS' assessment of and response to them are summarized above (see Comments 1 and 3 above). As described in the responses to those comments relating to the season opening dates, consistent with § 635.27(b)(3), the opening date for the all of the commercial shark fisheries will be implemented as proposed (January 1, 2016).

Section 604(a)(4) of the RFA requires NMFS to provide an estimate of the number of small entities to which the rule would apply. The Small Business Administration (SBA) has established size criteria for all major industry sectors in the United States, including fish harvesters. The SBA size standards are $20.5 million for finfish fishing, $5.5 million for shellfish fishing, and $7.5 million for other marine fishing, for-hire businesses, and marinas (79 FR 33647; June 12, 2014). NMFS considers all HMS permit holders to be small entities because they had average annual receipts of less than $20.5 million for finfish-harvesting. The commercial shark fisheries are comprised of fishermen who hold shark directed or incidental limited access permits and the related shark dealers, all of which NMFS considers to be small entities according to the size standards set by the SBA. This final rule applies to the approximately 210 directed commercial shark permit holders (124 in the Atlantic and 86 in the Gulf of Mexico regions), 253 incidental commercial shark permit holders (153 in the Atlantic and 100 in the Gulf of Mexico regions), and 100 commercial shark dealers (71 in the Atlantic and 29 in the Gulf of Mexico regions) as of October 2015.

Section 604(a)(5) of the RFA requires NMFS to describe the projected reporting, recordkeeping, and other compliance requirements of the final rule, including an estimate of the classes of small entities which would be subject to the requirements of the report or record. None of the actions in this final rule would result in additional reporting, recordkeeping, or compliance requirements beyond those already analyzed in the 2006 Consolidated HMS FMP and its amendments.

Section 604(a)(6) of the RFA requires NMFS to describe the steps taken to minimize the economic impact on small entities, consistent with the stated objectives of applicable statutes. Additionally, the RFA (5 U.S.C. 603(c)(1)-(4)) lists four general categories of “significant” alternatives that would assist an agency in the development of significant alternatives that would accomplish the stated objectives of applicable statutes and minimize any significant economic impact of the rule on small entities. These categories of alternatives are: (1) Establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) use of performance rather than design standards; and (4) exemptions from coverage of the rule, or any part thereof, for small entities.

In order to meet the objectives of this rule, consistent with the Magnuson-Stevens Act, NMFS cannot exempt small entities or change the reporting requirements only for small entities because all the entities affected are small entities. Thus, there are no alternatives discussed that fall under the first, second, and fourth categories described above. NMFS does not know of any performance or design standards that would satisfy the aforementioned objectives of this rulemaking while, concurrently, complying with the Magnuson-Stevens Act; therefore, there are no alternatives considered under the third category.

This rulemaking does not establish management measures to be implemented, but rather implements previously adopted and analyzed measures as adjustments, as specified in the 2006 Consolidated HMS FMP and its amendments and the Environmental Assessment (EA) for the 2011 shark quota specifications rule (75 FR 76302; December 8, 2010). Thus, in this rulemaking, NMFS adjusted the base quotas established and analyzed in the 2006 Consolidated HMS FMP and its amendments by subtracting the underharvest or adding the overharvest, as specified and allowable in existing regulations. Under current regulations (§ 635.27(b)(2)), all shark fisheries close on December 31 of each year, or when NMFS determines that the fishing season landings for any shark management group has reached, or is projected to reach, 80 percent of the available quota, and do not open until NMFS takes action, such as this rulemaking to re-open the fisheries. Thus, not implementing these management measures would negatively affect shark fishermen and related small entities, such as dealers, and also would not provide management flexibility in furtherance of equitable fishing opportunities, to the extent practicable, for commercial shark fishermen in all regions and areas.

Based on the 2014 ex-vessel price, fully harvesting the unadjusted 2016 Atlantic shark commercial baseline quotas could result in total fleet revenues of $4,583,514 (see Table 3). For the Gulf of Mexico blacktip shark management group, NMFS has increased the baseline sub-regional quotas due to the underharvests in 2015. The increase for the eastern Gulf of Mexico blacktip shark management group could result in a $8,397 gain in total revenues for fishermen in that sub-region, while the increase for the western Gulf of Mexico blacktip shark management group could result in a $77,289 gain in total revenues for fishermen in that sub-region. For the Gulf of Mexico non-blacknose SCS management group, NMFS has reduced the baseline quota due to the overharvest in 2014. This will cause a potential loss in revenue of $7,571 for the fleet in the Gulf of Mexico region. For the Atlantic blacknose shark management group, NMFS will continue to reduce the baseline quota through 2018 to account for overharvest in 2012 and will reduce the baseline quota for the next 3 years to account for overharvest in 2015. These reductions will cause a potential loss in revenue of $3,203 for the fleet in the Atlantic region.

All of these changes in gross revenues are similar to the changes in gross revenues analyzed in the 2006 Consolidated HMS FMP and its amendments. The FRFAs for those amendments concluded that the economic impacts on these small entities are expected to be minimal. In the 2006 Consolidated HMS FMP and its amendments and the EA for the 2011 shark quota specifications rule, NMFS stated it would be conducting annual rulemakings and considering the potential economic impacts of adjusting the quotas for under- and overharvests at that time.

For this final rule, NMFS reviewed the “opening commercial fishing season” criteria at § 635.27(b)(3)(i) through (vii) to determine when opening each fishery will provide equitable opportunities for fishermen while also considering the ecological needs of the different species. Over- and/or underharvests of 2015 and previous fishing season quotas were examined for the different species/complexes to determine the effects of the 2016 final quotas on fishermen across regional fishing areas. The potential season lengths and previous catch rates were examined to ensure that equitable fishing opportunities would be provided to fishermen. Lastly, NMFS examined the seasonal variation of the different species/complexes and the effects on fishing opportunities. In addition to these criteria, NMFS also considered other relevant factors, such as recent landings data and public comments, before arriving at the final opening dates for the 2016 Atlantic shark management groups. For the 2016 fishing season, NMFS is opening all of the shark management groups on January 1, 2016. The direct and indirect economic impacts will be neutral on a short- and long-term basis for the Gulf of Mexico blacktip shark, Gulf of Mexico aggregated LCS, Gulf of Mexico hammerhead shark, Gulf of Mexico non-blacknose shark SCS, Atlantic non-blacknose shark SCS, Atlantic blacknose shark, sandbar shark, blue shark, porbeagle shark, and pelagic shark (other than porbeagle or blue sharks) management groups, because NMFS did not change the opening dates of these fisheries from the status quo.

Opening the aggregated LCS and hammerhead shark management groups in the Atlantic region on January 1 will result in short-term, direct, moderate, beneficial economic impacts, as fishermen and dealers in the southern portion of the Atlantic region will be able to fish for and sell aggregated LCS and hammerhead sharks starting in January. These fishermen will be able to fish earlier in the 2016 fishing season compared to the 2010, 2011, 2012, 2014, and 2015 fishing seasons, which did not start until June or July. Based on public comment, some Atlantic fishermen in the southern and northern part of the region prefer a January 1 opening for the fishery as long as the majority of the quota is available later in the year. With the implementation of the HMS electronic reporting system in 2013, NMFS now monitors the quota on a more real-time basis compared to the paper reporting system that was in place before 2013. This ability, along with the inseason retention limit adjustment criteria in § 635.24(a)(8), should allow NMFS the flexibility to further provide equitable fishing opportunities for fishermen across all regions, to the extent practicable. Depending on how quickly the quota is being harvested, NMFS will reduce the retention limits to ensure that fishermen farther north have sufficient quota for a fishery later in the 2016 fishing season. The direct impacts to shark fishermen in the Atlantic region of reducing the trip limit depend on the needed reduction in the trip limit and the timing of such a reduction. Therefore, such a reduction in the trip limit for directed shark limited access permit holders is only anticipated to have minor adverse direct economic impacts to fishermen in the short-term; long-term impacts are not anticipated as these reductions would not be permanent.

In the northern portion of the Atlantic region, a January 1 opening for the aggregated LCS and hammerhead shark management groups, with inseason trip limit adjustments to ensure quota is available later in the season, will have direct, minor, beneficial economic impacts in the short-term for fishermen as they will potentially have access to the aggregated LCS and hammerhead shark quotas earlier than in past seasons. Fishermen in this area have stated that, depending on the weather, some aggregated LCS species might be available to retain in January. Thus, fishermen will be able to target or retain aggregated LCS while targeting non-blacknose SCS. There will be indirect, minor, beneficial economic impacts in the short- and long-term for shark dealers and other entities that deal with shark products in this region as they will also have access to aggregated LCS products earlier than in past seasons. Thus, opening the aggregated LCS and hammerhead shark management groups in January and using inseason trip limit adjustments to ensure the fishery is open later in the year in 2016 will cause beneficial cumulative economic impacts, because it allows for a more equitable distribution of the quotas among constituents in this region, consistent with the 2006 Consolidated HMS FMP and its amendments.

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, NMFS has prepared a brochure summarizing fishery information and regulations for Atlantic shark fisheries for 2016. This brochure also serves as the small entity compliance guide. Copies of the compliance guide are available from NMFS (see ADDRESSES).

Regulations governing the bluefish fishery are found at 50 CFR part 648. The regulations require annual specification of a commercial quota that is apportioned among the coastal states from Florida through Maine. The process to set the annual commercial quota and the percent allocated to each state are described in § 648.162.

The final rule implementing Amendment 1 to the Bluefish Fishery Management Plan, which was published in the Federal Register on July 26, 2000 (65 FR 45844), provided a mechanism for bluefish quota to be transferred from one state to another. Two or more states, under mutual agreement and with the concurrence of the Administrator, Greater Atlantic Region, NMFS (Regional Administrator), can transfer or combine bluefish commercial quota under § 648.162(e). The Regional Administrator is required to consider the criteria in § 648.162(e)(1) in the evaluation of requests for quota transfers or combinations.

North Carolina has agreed to transfer 250,000 lb (113,398 kg) of its 2015 commercial quota to New York. This transfer was prompted by state officials in New York to address an overage of its commercial bluefish quota and to provide sufficient quota to allow the fishery to remain open. The Regional Administrator has determined that the criteria set forth in § 648.162(e)(1) have been met. The revised bluefish quotas for calendar year 2015 are: North Carolina, 1,139,371 lb (512,727 kg); and New York, 1,094,304 lb (496,367 kg).

This action is taken under 50 CFR part 648 and is exempt from review under Executive Order 12866.