Federal Register Vol. 80, No.64,

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to the specified products. The NPRM was published in the Federal Register on December 2, 2014 (79 FR 71363). The NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

We gave the public the opportunity to participate in developing this AD. We considered the comment received. The commenter supports the NPRM (79 FR 71363, December 2, 2014).

We reviewed the available data, including the comment received, and determined that air safety and the public interest require adopting this AD as proposed.

We estimate that this AD affects 2 engines installed on airplanes of U.S. registry. We also estimate that it will take about 120 hours per engine to comply with this AD. The average labor rate is $85 per hour. Parts cost is zero. Based on these figures, we estimate the cost of this AD on U.S. operators to be $20,400.

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

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

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

For the reasons discussed above, I certify this AD:

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

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

(3) Will not affect intrastate aviation in Alaska 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.

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

This amendment to part 95 of the Federal Aviation Regulations (14 CFR part 95) amends, suspends, or revokes IFR altitudes governing the operation of all aircraft in flight over a specified route or any portion of that route, as well as the changeover points (COPs) for Federal airways, jet routes, or direct routes as prescribed in part 95.

The specified IFR altitudes, when used in conjunction with the prescribed changeover points for those routes, ensure navigation aid coverage that is adequate for safe flight operations and free of frequency interference. The reasons and circumstances that create the need for this amendment involve matters of flight safety and operational efficiency in the National Airspace System, are related to published aeronautical charts that are essential to the user, and provide for the safe and efficient use of the navigable airspace. In addition, those various reasons or circumstances require making this amendment effective before the next scheduled charting and publication date of the flight information to assure its timely availability to the user. The effective date of this amendment reflects those considerations. In view of the close and immediate relationship between these regulatory changes and safety in air commerce, I find that notice and public procedure before adopting this amendment are impracticable and contrary to the public interest and that good cause exists for making the amendment effective in less than 30 days.

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

FDA is amending its regulations in parts 1, 26, 99, 201, 203, 206, 207, 310, 312, 314, 600, 601, 606, 607, 610, 660, 680, 801, 807, 812, 814, 822, and 1271 (21 CFR parts 1, 26, 99, 201, 203, 206, 207, 310, 312, 314, 600, 601, 606, 607, 610, 660, 680, 801, 807, 812, 814, 822, and 1271) to reflect the following changes: (1) The relocation of CBER offices and laboratories from various Rockville and Bethesda, MD, locations to the FDA White Oak campus in Silver Spring, MD; (2) the change of address of CBER's Document Control Center; (3) updating the names of certain CBER organizational units referenced in the regulations; (4) revising certain cross-references to be more specific and thereby facilitate locating the appropriate mailing addresses for submissions, requests, and other correspondence relating to biological products regulated by CBER and the Center for Drug Evaluation and Research (CDER); and (5) making other minor changes to ensure accuracy. The updated addresses include locations to which applicants must submit information related to applications or products regulated by CBER or from which the public can request information. Where appropriate, CBER Web addresses for obtaining or submitting forms and other information are added or updated, and outdated addresses are removed. In certain instances, mail previously addressed to specific CBER offices should now be addressed to the CBER Document Control Center.

The technical amendments, reflected in the regulatory text of this final rule, are as follows:

• In § 1.101(d)(2)(i), the CBER unit and address for submitting notifications regarding CBER-regulated products exported under section 802 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 382) are updated to the CBER Document Control Center on the White Oak campus.

• In Appendix E to subpart A of part 26, the contact information provided for CBER, including its address, telephone, and fax numbers to be used in the two-way alert system established in accordance with the 1998 “Agreement on Mutual Recognition Between the United States of America and the European Community,” is updated to reflect CBER's move to the White Oak campus.

• In § 99.201(c)(1), the CBER unit and address to send a submission and certification statement, or to send an application for exemption relating to the dissemination of information on an unapproved/new use regarding a biological product or device is updated to the CBER Document Control Center on the White Oak campus.

• In § 201.25(d)(2), the CBER unit and address for submitting a request for exemption from the bar code label requirement for biological products regulated by CBER are updated to the CBER Document Control Center on the White Oak campus. Several other minor changes are made to this provision for purposes of clarity and correctness in referring to products regulated by CBER or CDER.

• In § 201.58, the CBER unit and address for submitting a request for waiver from certain labeling requirements are updated to the CBER Document Control Center on the White Oak campus.

• In § 203.12, the CBER unit and address for submitting an appeal from an adverse decision relating to the reimportation of biological products regulated by CBER are updated to the CBER Document Control Center on the White Oak campus. Several other minor changes in terminology also are made to this provision for purposes of accuracy and consistency when referring to products regulated by CBER or CDER.

• In § 203.37(e), the CBER unit and address for submitting information in notifications and reports involving human prescription biological products regulated by CBER are updated to the CBER Document Control Center on the White Oak campus. Several other minor changes in terminology also are made to this provision for purposes of accuracy and consistency when referring to products regulated by CBER or CDER.

• In § 203.70(b)(2), the CBER unit and address to apply for a reward when providing information leading to a criminal proceeding or conviction related to the sale, purchase, or trade of a drug sample are updated to the CBER Document Control Center on the White Oak campus.

• In § 206.7(b)(1)(i), the CBER unit and address for requesting an exemption from imprinting requirements involving human drug products in solid oral dosage form are updated to the CBER Document Control Center on the White Oak campus.

• In § 207.7(a), the CBER unit and address for submitting blood establishment registration and product listing information are updated to the CBER Document Control Center on the White Oak campus.

• In § 310.503(f)(3), the CBER unit and address for submitting an investigational new drug (IND) application or an application for a biologics license under section 351 of the Public Health Service Act with regard to certain radioactive drugs considered biologics are updated to the CBER Document Control Center on the White Oak campus.

• In § 312.140(a)(3), the address for submitting an IND application involving biological products regulated by CBER is updated to the White Oak campus.

• In § 312.145(b), the CBER unit and address from which to request a list of CBER guidances are updated to the Office of Communication, Outreach and Development and the White Oak campus.

• In § 312.310(d)(1), the CBER local telephone number for requesting emergency expanded access use of investigational biological drug products regulated by CBER is updated.

• In § 314.440(b), the CBER addresses for submitting new drug applications and other correspondence involving certain drug products used in the collection, processing, or storage of blood components, as well as the address for requesting an opportunity for a hearing, are updated to the White Oak campus.

• In § 600.2(a), the CBER Document Control Center address for regulatory submissions and other correspondence pertaining to licensed biological products regulated by CBER is updated to the White Oak campus.

• In § 600.2(c)(1), the CBER Sample Custodian address for submitting samples and protocols of licensed biological products regulated by CBER or CDER is updated to the White Oak campus.

• In § 600.2(c)(2), the unit and address for submitting samples and protocols of radioactive biological products are updated to the White Oak Radiation Safety Program and the White Oak campus.

• In § 600.11(f)(6), the cross-reference “§ 600.2” is changed to “§ 600.2(a) or (b)” to provide a more specific citation to the appropriate CBER or CDER address to use when notifying FDA of certain infectious animal diseases.

• In § 600.14(e)(1), the CBER unit and address for reporting biological product deviations for products regulated by CBER are updated to the CBER Document Control Center on the White Oak campus. The specific CBER Web address for submitting such reports electronically is removed, and a more general reference for submitting such reports electronically is added in its place.

• In § 600.22(e), the cross-reference “§ 600.2” is changed to “§ 600.2(c)” to provide a more specific citation to the appropriate CBER or CDER address to use when submitting product or ingredient samples from an inspection of a licensed establishment.

• In § 601.2(a), the cross-reference “§ 600.2” is changed to “§ 600.2(a) or (b)” to provide a more specific citation to the appropriate CBER or CDER address to use when submitting an application for a biologics license.

• In § 601.12(f)(4), the reference to Form FDA 2567 (Transmittal of Labels and Circulars) is removed because the form is no longer used.

• In § 601.15, the cross-reference “§ 600.2” is changed to “§ 600.2(c)” to provide a more specific citation to the appropriate address to use when submitting samples of imported licensed biological products regulated by CBER or CDER.

• In § 601.28, the cross-reference “§ 600.2” is changed to “§ 600.2(a) or (b)” to provide a more specific citation to the appropriate CBER or CDER address to use when submitting postmarketing pediatric studies with regard to licensed biological products.

• In § 601.29(b), the CBER unit and address from which to request a list of CBER guidances are updated to the White Oak campus.

• In § 601.70(d), the cross-reference “§ 600.2” is changed to “§ 600.2(a) or (b)” to provide a more specific citation to the appropriate CBER or CDER address to use when submitting annual progress reports of postmarketing studies.

• In § 606.170(b), the cross-reference “§ 600.2” is changed to “§ 600.2(a)” to clarify the need to use the updated CBER Document Control Center address when submitting a written report involving a fatal adverse reaction relating to blood collection or transfusion.

• In § 606.171(e), the CBER unit and address for reporting blood and blood component product deviations are updated to the CBER Document Control Center on the White Oak Campus. The specific CBER Web address for submitting such reports electronically is removed, and a more general reference for submitting such reports electronically is added in its place. Other editorial changes have been made to improve the provision's clarity without changing its meaning.

• In § 607.7(b) and (c), the cross-reference “§ 600.2” is changed to “§ 600.2(a)” and the reference to mail code “(HFM-375)” is removed to clarify using the updated CBER Document Control Center address in § 600.2(a) when requesting and submitting registration and product listing information with regard to the manufacture of blood products.

• In § 607.22(a), the cross-reference “§ 600.2” is changed to “§ 600.2(a)” and the reference to mail code “(HFM-375)” is removed to clarify using the updated CBER Document Control Center address in § 600.2(a) when requesting and submitting registration and product listing information involving the manufacture of blood products on Form FDA 2830. Reference to the “Department of Health and Human Services” as part of the address has been removed.

• Section 607.37(a) is updated to reflect that registrant and product list information filed on Form FDA 2830 for establishments manufacturing blood products, previously made available through public inspection at CBER offices, now is accessible by using CBER's Web site or by visiting FDA's Division of Dockets Management. In § 607.37(b), the name of the CBER unit and address for requesting other information regarding blood establishment registrations and blood product listings are updated to the Office of Communication, Outreach and Development and the White Oak campus.

• In § 610.2(a) and (b), the cross-reference “§ 600.2” is changed to “§ 600.2(c)” to provide a more specific citation to the appropriate address to use when submitting samples and protocols of licensed biological products.

• In § 610.11(g)(2), the cross-reference “§ 600.2” is changed to “§ 600.2(a) or (b)” to provide a more specific citation to the appropriate CBER or CDER address to use when submitting a request for an exemption from the general safety test requirement for licensed biological products.

• In § 610.15(a)(3), the cross-reference “§ 600.2” is changed to “§ 600.2(a) or (b)” to provide a more specific citation to the appropriate CBER or CDER address to use when submitting data regarding the amount of aluminum used in individual doses of a biological product.

• In § 660.3, the CBER unit and address for obtaining a Reference Hepatitis B Surface Antigen Panel have been updated to CBER Reagents and Standards Shipping and the White Oak campus.

• In § 660.6(a)(2), the cross-reference “§ 600.2” is changed to “§ 600.2(c)” to provide a more specific citation to the appropriate address to use when submitting product samples and protocols involving Antibody to Hepatitis B Surface Antigen. Also, a misspelling of the word “Official” in the heading in § 660.6(c) is corrected.

• In § 660.22(b), the CBER unit and address for obtaining reference preparations for Reference Blood Grouping Reagents have been updated to CBER Reagents and Standards Shipping and the White Oak campus.

• In § 660.36, the cross-reference to § 600.2(c) is added to § 660.36(a) and (c), and the cross-reference to § 600.2(a) is added to § 660.36(b), to provide further specificity as to the appropriate address to use when submitting product samples and protocols relating to Reagent Red Blood Cells.

• In § 660.46(a)(2), the cross-reference “§ 600.2” is changed to “§ 600.2(c)” to provide a more specific citation to the appropriate address to use when submitting product samples and protocols relating to Hepatitis B Surface Antigen.

• In § 660.52, the CBER unit and address for obtaining reference preparations for Reference Anti-Human Globulin are updated to CBER Reagents and Standards Shipping and the White Oak campus.

• In § 680.1(b)(2)(iii), (b)(3)(iv), and (c), the cross-reference “§ 600.2” is changed to “§ 600.2(a) of this chapter” to clarify using the updated CBER Document Control Center address when submitting the requested source material information regarding allergenic products.

• In § 801.55(b)(1), the CBER unit and address for requesting an exception or alternative to a unique device identifier for devices regulated by CBER are updated to the CBER Document Control Center on the White Oak campus.

• In § 807.90(a)(2), the address for submitting a premarket notification for devices regulated by CBER is updated to the White Oak campus; the specific CBER Web address for obtaining information about devices regulated by CBER is removed, and a more general reference for obtaining this information on the CBER's Web site is added in its place.

• In § 812.19(a)(2), the address for sending correspondence in connection with investigational device exemptions (IDEs) involving devices regulated by CBER is updated to the White Oak campus.

• In § 814.20(h)(2), the address for submitting a premarket approval application (PMA), a PMA amendment, a PMA supplement, or correspondence involving a PMA for devices regulated by CBER is updated to the White Oak campus.

• In § 814.104(d)(2), the address for submitting an original PMA seeking a humanitarian device exemption (HDE), or related amendments or supplements, or other correspondence relating to an HDE for devices regulated by CBER is updated to the White Oak campus.

• In § 822.8, the address for submitting a postmarket surveillance plan for devices regulated by CBER is updated to the White Oak campus.

• The address for submitting a reclassification petition for devices regulated by CBER in § 860.123(b)(1) was updated to the White Oak campus in a previous FDA document published in the Federal Register on December 24, 2014 (79 FR 77387).

• In § 1271.22(b), the CBER address and local telephone number for requesting Form FDA 3356 involving establishment registration and listing for human cells, tissues, and cellular and tissue-based products (HCT/Ps) are updated to the Document Control Center on the White Oak campus. In § 1271.22(c)(1), the CBER unit and address for submitting Form FDA 3356 are updated to the CBER Document Control Center on the White Oak campus. And in § 1271.22(c)(2), the specific CBER Web address for submitting Form FDA 3356 electronically is removed, and a more general reference for submitting this form electronically is added in its place.

• Section 1271.37(a) is updated to reflect that registrant and product list information filed on Form FDA 3356 for HCT/Ps, previously made available for public inspection at CBER offices, can now be accessed through CBER's Web site or by visiting FDA's Division of Dockets Management. In § 1271.37(b), the name of the CBER unit and address for requesting other information regarding HCT/P establishment registrations and HCT/P listings are updated to the Office of Communication, Outreach and Development and the White Oak campus.

• In § 1271.350(a)(5), the CBER unit and address for submitting adverse reaction reports involving an HCT/P have been updated to the CBER Document Control Center on the White Oak campus. In § 1271.350(b)(3), the address for obtaining and submitting Form FDA 3486 by mail has been updated to the CBER Document Control Center on the White Oak campus. The specific CBER Web addresses for obtaining and submitting the form electronically have been replaced by a more general reference to using CBER's electronic Web-based application.

Publication of this document constitutes final action of these changes under the Administrative Procedure Act (5 U.S.C. 553). FDA has determined that notice and public comment are unnecessary because this amendment to the regulations provides only technical changes to update addresses and other information, and is nonsubstantive.

Therefore, under the Federal Food, Drug, and Cosmetic Act, the Public Health Service Act, and under authority delegated to the Commissioner of Food and Drugs, 21 CFR parts 1, 26, 99, 201, 203, 206, 207, 310, 312, 314, 600, 601, 606, 607, 610, 660, 680, 801, 807, 812, 814, 822, and 1271 are amended as follows:

I. Background

On August 1, 1968, the Housing and Urban Development Act of 1968 (Pub. L. 90-448) amended the National Housing Act to add a new section 235 (12 U.S.C. 1715z) (Section 235 Program). This provision authorized the Secretary to provide subsidies to reduce mortgage interest rates to as low as 1 percent and authorized a new credit assistance homeownership program for lower-income families who were unable to meet the credit requirements generally applicable to FHA mortgage insurance programs. HUD promulgated regulations implementing the Section 235 Program on January 6, 1976 (see 41 FR 1176) and codified these regulations in part 235 of title 24 of the Code of Federal Regulations (CFR). However, on February 5, 1988, the Section 235 Program was terminated under section 401(d) of the Housing and Community Development Act of 1987 (Pub. L. 100-242) and HUD ceased to make mortgage subsidy payments available under this program beginning October 1, 1989.1 In 1995, HUD removed much of part 235 from the CFR as part of HUD's effort to eliminate outdated, obsolete, or unutilized regulations, leaving only the parts that were necessary to regulate outstanding loans assisted or insured under the program. (See 60 FR 56498.) As of the date of this publication, there are only two outstanding loans remaining that were assisted or insured under this program.

Since authority for HUD to provide assistance or insurance to low-income borrowers under the Section 235 Homeownership Program expired on October 1, 1989, HUD is proceeding to remove Section 235 Program regulations codified in 24 CFR part 235.

Loans issued with assistance provided under Section 235 that are still outstanding will continue to be governed by the regulations in effect on May 3, 2015. Accordingly, this rule amends § 1301 (Expiring Programs—Savings Clause) of 24 CFR 200, subpart W (Administrative Matters), and adds a new paragraph (g) to § 200.1301, which preserves the Section 235 Program regulations as in effect prior to the effective date of this final rule, and continues to govern any assistance provided under the Section 235 Program before May 4, 2015.

HUD generally publishes a rule for public comment before issuing a final rule for effect, in accordance with HUD's own regulations on rulemaking in 24 CFR part 10. However, part 10 provides for exceptions to the general rule if the agency finds good cause to omit advance notice and public participation. The good cause requirement is satisfied when prior public procedure is impracticable, unnecessary, or contrary to the public interest. (See 24 CFR 10.1.)

HUD finds that public notice and comment are not necessary for this rulemaking because assistance is no longer being provided under this program and, therefore, the regulations are no longer operative. For these reasons, HUD has determined that it is unnecessary to delay the effectiveness of this rule in order to solicit prior public comment.

The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Because HUD has determined that good cause exists to issue this rule without prior public comment, this rule is not subject to the requirement to publish an initial or final regulatory flexibility analysis under the RFA as part of such action.

Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) 2 requires that an agency prepare a budgetary impact statement before promulgating a rule that includes a Federal mandate that may result in the expenditure by state, local and tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year. If a budgetary impact statement is required, section 205 of UMRA also requires an agency to identify and consider a reasonable number of regulatory alternatives before promulgating a rule.3 However, the UMRA applies only to rules for which an agency publishes a general notice of proposed rulemaking pursuant to the APA.4 As discussed above, HUD has determined for good cause that the APA does not require general notice and public comment on this rule and, therefore, the UMRA does not apply to this final rule.

Executive Order 13132 (entitled “Federalism”) prohibits an agency from publishing any rule that has federalism implications if the rule either imposes substantial direct compliance costs on state and local governments and is not required by statute, or the rule preempts state law, unless the agency meets the consultation and funding requirements of section 6 of the Executive Order. This final rule will not have federalism implications and would not impose substantial direct compliance costs on state and local governments or preempt state law within the meaning of the Executive Order.

This final rule does not direct, provide for assistance or loan and mortgage insurance for, or otherwise govern, or regulate, real property acquisition, disposition, leasing, rehabilitation, alteration, demolition, or new construction, or establish, revise or provide for standards for construction or construction materials, manufactured housing, or occupancy. Accordingly, under 24 CFR 50.19(c)(1), this final rule is categorically excluded from environmental review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321).

For the reasons set forth in the preamble, and under the authority of 42 U.S.C. 3535(d), HUD amends 24 CFR parts 200 and 235 as follows:

Background

This document contains final and temporary regulations for § 1.41-6, § 1.45G-1, and § 1.280C-4 of the Income Tax Regulations (26 CFR part 1). These regulations update the rules in a manner that is consistent with the amendments made to section 41(f)(1)(A)(ii) and section 41(f)(1)(B)(ii) in Section 301(c) of the Act.

Section 41(a) provides an incremental tax credit for increasing research activities and is based on a percentage of a taxpayer's qualified research expenses over a base amount, basic research payments as determined under section 41(e)(1)(A), and amounts paid or incurred to energy research consortiums (collectively, “QREs”). Under section 41(f)(1) and § 1.41-6(b), all members of a controlled group are treated as a single taxpayer for purposes of computing the research credit for the group (group credit). Section 1.41-6(b) provides that the group credit is computed by applying all of the section 41 computational rules on an aggregate basis. Section 1.41-6(c) provides a method of allocating a group research credit among the members of the controlled group.

Section 301(c) of the Act amended section 41(f)(1)(A)(ii) and section 41(f)(1)(B)(ii) by requiring the allocation of research credits to each controlled group member “on a proportionate basis to its share of the aggregate of the qualified research expenses, basic research payments, and amounts paid or incurred to energy research consortiums, taken into account by such controlled group for purposes of this section.” Section 301(c) of the Act applies to taxable years beginning after December 31, 2011.

Former section 41(f)(1)(A)(ii) and former section 41(f)(1)(B)(ii) provided that the research credit allowable to a controlled group member shall be its proportionate shares of the QREs giving rise to the credit. Prior to these regulations, § 1.41-6(c)(1)(i) required a controlled group to allocate the group credit in proportion to each member's stand-alone entity credit, as defined in § 1.41-6(c)(2), in cases in which the group credit does not exceed the sum of the stand-alone entity credits of all of the members. If the group credit does exceed this sum, then the excess of the group credit over the sum of the stand-alone entity credits of all of the members was allocated in proportion to the QREs of the members of the controlled group. See § 1.41-6(c)(1)(ii).

Notice 2013-20 (2013-15 IRB 902 (April 8, 2013)) was released on March 9, 2013, to provide interim guidance relating to the allocation of the controlled group research credit and is effective for taxable years beginning after December 31, 2011. Notice 2013-20 provides that the group credit is allocated to group members based on each member's share of QREs, without regard to whether the member would have a stand-alone entity credit or what the amount of any such credit would be.

The final and temporary regulations implement the Act's changes to the allocation of the controlled group research credit by revising the allocation method in § 1.41-6(c), (d), and (e). Section 1.41-6T(c) provides an allocation method that follows the approach taken in Notice 2013-20. Section 1.41-6T(c) provides that the group credit is allocated to group members based on a member's proportionate share of the controlled group's aggregate QREs. Members are no longer required to calculate a stand-alone entity credit. The temporary regulations also remove references to the stand-alone entity credit in § 1.41-6(d)(1) and (3). New examples are provided in § 1.41-6T(e). The first example illustrates a general application of the allocation method provided in these temporary regulations. The second example demonstrates an allocation under these temporary regulations where a consolidated group is treated as a single member of a controlled group pursuant to § 1.41-6T(d).

A commenter to Notice 2013-20 suggested that the IRS adopt a safe harbor under § 1.41-6(c) that permits taxpayers to calculate and allocate group credits for taxable years ending prior to January 1, 2013, under the new law. The commenter's proposal would effectively make the Act's amendments retroactive to before the effective date of the statutory change (change effective for taxable years beginning after December 31, 2011). Therefore, the regulations do not adopt this suggestion for taxable years beginning before January 1, 2012. For taxable years beginning before January 1, 2012, taxpayers must apply the rules applicable to such taxable years.

Section 45G, subject to limitations, generally provides a RTMC in an amount equal to fifty percent of the qualified railroad track maintenance expenditures paid or incurred by an eligible taxpayer during the year. Section 45G(e)(2) provides, for controlled groups, that rules similar to the rules of section 41(f)(1) shall apply for purposes of section 45G. Section 1.45G-1(f) provides guidance on determining the amount of RTMC under section 45G if a taxpayer is a member of a controlled group. Section 1.45G-1(f) applies rules similar to the rules of § 1.41-6 for allocating a group RTMC.

The temporary regulations add § 1.45G-1T(f)(4) to provide an allocation method for the RTMC that is consistent with the Act's amendments to section 41(f)(1). Section 1.45G-1T(f)(5)(i) and (ii) of the temporary regulations remove references to the stand-alone entity credit.

Section 280C(c)(1) generally disallows otherwise allowable deductions for QREs in an amount equal to the research credit determined under 41(a) for a taxable year. Section 280C(c)(3) provides a method to elect a reduced amount of research credit. Section 280C(c)(4) provides, by reference to section 280C(b)(3), that in the case of a corporation which is a member of a controlled group of corporations (within the meaning of section 41(f)(5)) or a trade or business treated as being under common control with other trades or business (within the meaning of section 41(f)(1)(B)), section 280C(c) shall be applied under rules prescribed by the Secretary similar to the rules applicable under section 41(f)(1)(A) and (B). Section 1.280C-4(b) relates to the election under section 280C(c)(3) that a member of a controlled group may make. Section 1.280C-4(b)(2) contains an example that includes references to the rules in § 1.41-6(c). The temporary regulations update the example in § 1.280C-4(b)(2) because it describes the rules of section 41(f) in effect before the Act's amendments.

Notice 2013-20 (2013-15 IRB 902) is obsolete for taxable years beginning on or after April 3, 2015.

The temporary regulations are applicable for taxable years beginning on or after April 3, 2015 and expire on April 2, 2018. A taxpayer may apply §§ 1.41-6T, 1.45G-1T, and 1.280C-4T to taxable years beginning after December 31, 2011, but before April 3, 2015. For a taxpayer that does not apply these temporary regulations to a taxable year beginning after December 31, 2011, but before April 3, 2015, the guidance that applies to such taxable year is contained in Notice 2013-20 (2013-15 IRB 902).

It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866, as supplemented by Executive Order 13563. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. For the applicability of the Regulatory Flexibility Act (5 U.S.C. chapter 6), refer to the Special Analyses section of the preamble to the cross-referenced notice of proposed rulemaking published in the Proposed Rules section in this issue of the Federal Register. Pursuant to section 7805(f) of the Code, these regulations have been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact on small business.

The principal author of these regulations is James Holmes, Office of the Associate Chief Counsel (Passthroughs and Special Industries). However, other personnel from the IRS and Treasury Department participated in their development.

Accordingly, 26 CFR part 1 is amended as follows:

On March 21, 2011, the Department of Justice published a proposed rule to revise its existing regulations under the FOIA. See 76 FR 15236. On September 19, 2011, the Department reopened the comment period for another thirty days in order to consider additional public comments. See 76 FR 57940.

Interested persons were afforded the opportunity to participate in the rulemaking process through submission of written comments to the proposed rule during the two open comment periods. In total, the Department received fifteen public submissions in response to its proposed rule, including comments from another agency as well as internal comments from components of the Department. Due consideration has been given to each of the comments received and, in response, the Department has made several modifications to the rule. These modifications include clarifying, revising, or expanding various provisions, withdrawing a provision, retaining existing language for certain other provisions, and making technical edits, such as correcting Web site links.

As an initial matter, the Department has decided that the final regulations will reference the Department's policy to encourage discretionary releases of information whenever disclosure would not foreseeably harm an interest protected by a FOIA exemption.

Some commenters suggested the inclusion of provisions that would merely duplicate certain statutory requirements, such as adding provisions describing the FOIA's standards for tolling of requests or delineating the statutory duties of FOIA Public Liaisons. Other than those instances where the Department believed it was important for emphasis, in order to streamline these regulations the Department has intentionally not simply repeated statutory provisions. These regulations implement the FOIA as well as the Office of Management and Budget's Uniform Freedom of Information Act Fee Schedule and Guidelines, 52 FR 10012 (Mar. 27, 1987) (“OMB Guidelines”), and should be read in conjunction with those authorities. The regulations are not meant to duplicate or to serve as a substitute for these sources.

Several public submissions contained comments regarding the Department's assessment of fees. As a general matter, the Department notes that the fee provisions are written to conform with the OMB Guidelines, which establish uniform standards for fee matters. Conformity with the OMB Guidelines is required by the FOIA. See 5 U.S.C. 552(a)(4)(A)(i).

One commenter questioned the specific dollar amount that he had been charged by one Department component for producing records on compact discs (“CDs”) as well as the volume of material that was loaded onto each CD. In accordance with the OMB Guidelines, see 52 FR at 10018, the Department's current regulations provide (without specifying a dollar amount) for the assessment of “direct costs,” meaning the actual cost of producing the media, incurred by the component when producing records in a format other than paper. The direct costs of producing records on CD may include scanning paper records into an electronic format and conducting requisite security scans in addition to the cost associated with the blank CD. Section 16.10(c)(2) of the final rule, which allows components to charge “direct costs” for non-paper media, gives components flexibility to adjust fees as the costs of providing records in a specified format change over time. This same flexibility allows components to adjust the volume of material loaded onto each CD to ensure that requesters receive material as efficiently as possible. The expectation is that with technological advances, components will pass along the reduced costs to requesters contemporaneously, without first necessitating a change in the regulation. Accordingly, this regulation is not the proper venue for determining the specific dollar amount that components should charge or the volume of material that should be loaded onto each CD.

Several commenters expressed concerns about the increase in search fees. In contrast to the use of “direct costs” for responding to a request for non-paper media, search fees are assessed on a uniform basis throughout the Department in accordance with the OMB Guidelines and are largely salary-based. See 52 FR at 10018. The Department has reexamined the rates using a formula for search and review fees that takes into account current pay rates for different levels of staff involved in processing FOIA requests. The revised rule changes the “administrative” staff category to “clerical/administrative” to account for work performed by either clerical or administrative staff who may assist FOIA professionals in searching for responsive records. As a result of these adjustments, while there is a small increase in the rates from our existing regulations, we were able to reduce the rates from those originally proposed. Updating these costs is consistent with the OMB Guidelines, which provide that “[a]gencies should charge fees that recoup the full allowable direct costs they incur.” Id. While certain costs are now higher than when last calculated 13 years ago, the revised fee schedule includes a decrease in duplication fees due to advances in technology. The Department includes in the revised regulations a directive that components “ensure that searches, review, and duplication are conducted in the most efficient and the least expensive manner.” § 16.10(a). For greater emphasis, the Department moves that directive in the final rule from the definition paragraph in proposed § 16.10 to the introductory paragraph in the final rule.

One commenter recommended that proposed § 16.10(b)(3) contain the statement, included in the existing version of that paragraph, 28 CFR 16.11(b)(3), that “[c]omponents shall honor a requester's specified preference of form or format.” The requirement to honor a requester's specified form or format preference is now located in § 16.10(c)(2), concerning charging duplication fees, which is a more appropriate location.

Some commenters expressed concern regarding the provisions that govern fees for educational institutions. The FOIA provides in relevant part that “fees shall be limited to reasonable standard charges for document duplication when records are not sought for commercial use and the request is made by an educational or noncommercial scientific institution, whose purpose is scholarly or scientific research.” 5 U.S.C. 552(a)(4)(A)(ii)(II). In other words, such a requester may not be charged fees for searches or review.

One commenter took issue with proposed § 16.10(b)(4), concerning the definition of the term educational institution. Specifically, the commenter objected to the phrase indicating that the educational institution must “operate[] a program of scholarly research” and argued that this requirement would effectively exclude various types of schools other than universities. The commenter mistakenly asserted that the provision would be new; in fact, not only is it not new, but the requirement that an educational institution have as its purpose “scholarly” research derives from the FOIA itself, see 5 U.S.C. 552(a)(4)(A)(ii)(II), and the specific language was taken directly from the OMB Guidelines. 52 FR at 10018; see also id. at 10014 (addressing rationale for this requirement). As the OMB Guidelines note, whether a school qualifies must be determined on a case-by-case basis:

Two commenters objected to the provision in proposed § 16.10(b)(4) stating that “[r]ecords requested for the intention of fulfilling credit requirements are not considered to be sought for a scholarly purpose.” This requirement is also taken from the OMB Guidelines, which distinguish individual research goals from an institution's research goals. The addition of this language was intended to reflect longstanding Department practice and to alleviate any confusion among student requesters. The statute indicates that the relevant question is whether the request is made “by an educational or noncommercial scientific institution.” 5 U.S.C. 552(a)(4)(A)(ii)(II). The OMB Guidelines address how that inquiry is to be made:

The final rule clarifies this provision by replacing the sentence that commenters flagged with a series of examples based on the OMB Guidelines discussion quoted above, thereby making clear that this inquiry applies to professors as well. Students and professors who do not qualify for reduced fees under this provision, and who do not seek the records for a commercial use, will, of course, be afforded the benefits of the two free hours of search time and one hundred pages of duplication without cost that are afforded to any other non-commercial use requester. See § 16.10(d)(4) of the final rule. And like all requesters, they may apply for a fee waiver under the fee waiver provision of the FOIA, pursuant to § 16.10(k) of the final rule.

One commenter suggested that the provision in proposed § 16.10(b)(6) stating that “[a] component's decision to grant a requester media status will be made on a case-by-case basis based upon the requester's intended use” should be deleted. The Department agrees and believes that the language is better placed under the definition of a “commercial use” requester. In the OMB Guidelines, the requester's intended use of the requested records determines whether the requester will fall within the “commercial use” fee category, or one of the other categories. See 52 FR at 10013, 10017-18. As the OMB Guidelines explain, “it is possible to envision a commercial enterprise making a request that is not for a commercial use” and “[i]t is also possible that a non-profit organization could make a request that is for a commercial use.” Id. at 10013. To make this point clearer, the Department moves the reference to case-by-case determinations to the “commercial use” definition. Within the definition of “representative of the news media,” the Department retains the statement from its existing regulations that “a request for records supporting the news-dissemination function of the requester shall not be considered to be for a commercial use.”

This commenter also suggested including a reference to news organizations that operate solely on the Internet in the list of examples of “representatives of the news media.” The Department concurs and adds such an example.

Another commenter suggested that the definition of “representative of the news media” in proposed § 16.10(b)(6) should not require that the person or entity be “organized and operated to publish or broadcast news.” This requirement is being retained because it comes directly from the definition of “representative of the news media” in the OMB Guidelines, see 52 FR at 10018, which is in turn based on the statute's inclusion of the term “news” in this fee category, see id. at 10015.

One commenter suggested that proposed § 16.10(c)(1)(iii), regarding the direct costs associated with creating computer programs to extract information, require that requesters be notified of any such costs before the costs are incurred. The Department agrees and revises this provision accordingly. Another commenter suggested that the regulations address the provision of the OPEN Government Act of 2007, codified at 5 U.S.C. 552(a)(4)(A)(viii), that limits the charging of fees in certain instances where time limits are not met. This statutory provision, in fact, has been expressly addressed in proposed § 16.10(d)(2), which sets forth restrictions on charging fees.

One commenter suggested that under proposed § 16.10(e), when components notify requesters of anticipated fees in excess of $25.00, they provide non-commercial use requesters with their statutory entitlements of one hundred free pages and, when search fees are assessed, their two hours of free search time or the cost equivalent. The Department believes that requesters should be apprised of the option to receive their statutory entitlements regardless of whether estimated fees exceed $25.00 and has revised the provision to account for that. However, the Department believes it is preferable not to require components to perform the statutorily entitled free search and duplication before the requester responds to the notice because it would not be an efficient use of limited FOIA resources, inasmuch as the requester might choose to revise the request after receipt of the notice. The Department also adds a provision to permit requesters to designate a specific amount of fees that they are willing to pay. If it turns out that the total cost of processing the request is higher, the component must still process the request up to the amount of fees the requester agreed to pay, unless the requester withdraws the request. Finally, the Department adds language to clarify that when a requester has indicated a willingness to pay some amount of fees, the time to respond is tolled when the Department informs the requester that the total cost of processing the request is higher than the amount the requester indicated a willingness to pay. Once the agency receives the requester's response to the notice, the time to respond to the request will resume from where it was at the date of the notification.

One commenter suggested that Department components should make fee waiver determinations based “on the face of the request” under proposed § 16.10(k) and not defer such decisions “until after search costs are incurred.” The commenter misinterprets the effect of the six factors contained in proposed § 16.10(k). The regulations do not provide for the assessment of fees as part of the process of making a fee waiver determination. Rather, the six factors set out in the regulations guide Department components in applying the statutory standard for waiving fees. Requesters do not incur any charge as a result of this process.

Another commenter suggested that the Department delete the word “ordinarily” from proposed § 16.10(k)(2)(iii), concerning the third fee waiver factor, which discusses whether disclosure will contribute to public understanding of the subject. The Department accepts this comment and reinstates the original language: “It shall be presumed that a representative of the news media will satisfy this consideration.”

This commenter also suggested reinstatement of language in the existing regulations regarding presumptions about disclosures made to data brokers. The Department agrees and reinstates that language in § 16.10(k)(3)(ii) as well as the related language about presumptions regarding disclosure to the news media.

One commenter suggested adding a provision containing a statement that components may waive fees as a matter of discretion. The FOIA establishes a standard for waiver or reduction of fees. The Department's regulations are intended to define the manner in which this standard is to be applied. In some cases, components may need to make discretionary judgments, but they must do so within the confines of the statutory standard.

An agency commenter suggested that proposed § 16.10(e) be revised to include a provision that when components notify requesters of the actual or estimated amount of fees that they include in that estimate a breakdown of the fees for search, review, or duplication. The Department agrees and makes that revision.

A number of commenters raised concerns regarding proposed § 16.6(f)(2), which pertained to responses to requests involving records excluded from the requirements of the FOIA by 5 U.S.C. 552(c). Section 552(c), enacted as an amendment to the FOIA in 1986, see Public Law 99-570, secs. 1801-04, 100 Stat. 3207, provides special protection for three categories of particularly sensitive law enforcement records. The first exclusion protects against disclosure of a pending criminal law enforcement investigation where there is reason to believe that the target is unaware of the investigation and disclosure of its existence could reasonably be expected to interfere with enforcement proceedings. The second exclusion, which applies only to records maintained by criminal law enforcement agencies, protects against disclosure of unacknowledged, confidential informants. The third exclusion, which applies only to the Federal Bureau of Investigation, protects against disclosure of foreign intelligence or counterintelligence, or international terrorism records, when the existence of those records is classified.

Proposed § 16.6(f)(2) provided as follows: “When a component applies an exclusion to exclude records from the requirements of the FOIA pursuant to 5 U.S.C. 552(c), the component utilizing the exclusion will respond to the request as if the excluded records did not exist. This response should not differ in wording from any other response given by the component.” Commenters suggested that this language would impede governmental transparency and accountability.

Proposed § 16.6(f)(2) was intended to incorporate guidance issued more than 20 years ago by Attorney General Edwin Meese. See Attorney General's Memorandum on the 1986 Amendments to the Freedom of Information Act 18-30 (December 1987), available at http://www.justice.gov/oip/86agmemo.htm (“Meese Guidance”). The Meese Guidance provided, among other things, that where the only records responsive to a request were excluded from the FOIA by statute, that “a requester can properly be advised in such a situation that `there exist no records responsive to your FOIA request.' ” Id. at 27. The Meese Guidance also advised agencies that they must ensure that their FOIA responses are consistently worded so that a requester is not able to determine from the wording of a response that an exclusion was invoked. See id.

In September 2012, in order to bring greater awareness to the public about the existence and effect of these statutory provisions, the Office of Information Policy (“OIP”) issued guidance outlining the steps all agencies should take to ensure proper implementation of exclusions and setting forth the new requirements for their use. See Office of Information Policy, “Implementing FOIA's Statutory Exclusion Provisions” (September 14, 2012), available at http://www.justice.gov/oip/foiapost/2012foiapost9.html (“OIP Exclusion Guidance”).

The OIP Exclusion Guidance establishes a new approach for all agencies to take when responding to requests, in lieu of the approach that had been set forth in proposed § 16.6(f)(2). Specifically, all agency components that maintain criminal law enforcement records now include a notification in their FOIA response letters advising requesters that Congress excluded certain records from the requirements of the FOIA and that the agency's response addresses those records that are subject to the requirements of the FOIA. The Department instructed these law enforcement components to include the following language in response to all FOIA requests:

As explained in greater length in the OIP Exclusion Guidance, the Department believes that the use of this language addresses the concerns raised by the commenters who had criticized proposed § 16.6(f)(2), while preserving the integrity of the sensitive law enforcement records at stake.

The final rule retains two provisions in the proposed rule aimed at ensuring proper use of exclusions. Before applying an exclusion, the component must first obtain approval from OIP. See § 16.6(g)(1). Furthermore, any component invoking an exclusion must maintain records of its use and approval. See § 16.6(g)(2). These provisions are intended to enhance accountability in the use of exclusions.

One commenter suggested that the last sentence of proposed § 16.4(a), which provides that “[a] record that is excluded from the requirements of the FOIA pursuant to 5 U.S.C. 552(c), shall not be considered responsive to a request” should be changed to say that the records “may not be considered responsive.” This sentence was designed to provide notice that records determined by a component to be properly subject to an exclusion are not considered to be responsive to the FOIA request. The FOIA provides that agencies “may,” under certain defined circumstances, treat records “as not subject to the requirements of [the FOIA],” 5 U.S.C. 552(c). As a result, components may choose not to apply an exclusion even if the FOIA would allow them to do so. This provision addresses those situations where a component does decide to lawfully apply an exclusion. The provision makes clear that in those cases the excluded records are not responsive to the request. For clarity, we have changed the wording in the final rule to replace the word “shall” with “is” so that the regulation more clearly conveys that it is addressing the consequence of those situations where a component has decided to apply an exclusion.

An agency commenter suggested that requiring components to obtain OIP approval before applying an exclusion would conflict with OIP's role as the adjudicator of any subsequent administrative appeal. The commenter questioned whether, if OIP approved the use of an exclusion beforehand, it could review impartially its own decision on appeal. The commenter therefore recommended that components be required only to consult with OIP, rather than obtain its approval, before applying an exclusion. The Department declines to make this change. OIP is both a guidance office and an appeal authority, and aims to assist components as early as possible in the process to ensure that requests are processed properly and to obviate the need for appeals where possible. In light of the importance of invoking exclusions properly, the Department believes it is critical that OIP approve their use beforehand, given that only a subset of requesters file administrative appeals.

One commenter expressed concern that the proposed rule removes a reference to the requirement that records required to be made available for public inspection be indexed as well. In fact, the rule does not remove this requirement; rather, it states that each component is responsible for posting and indexing such records, and for updating posted records and indices on an ongoing basis.

The same commenter suggested that proposed § 16.2 should be modified to require that Department components post online the responses to all FOIA requests that do not involve individuals seeking access to their own records. The Department encourages the posting of all records, particularly records likely to be of interest to the public. However, given that resources are needed to properly code records for posting, it is important that Department components retain flexibility to decide how best to use those resources, including flexibility to use other options such as posting logs of FOIA responses.

One commenter expressed concern that proposed § 16.3(a) “will allow the agency to summarily deny requests when the requester fails to write to the correct `FOIA office of the Department component.'” This scenario was not the intention of that provision, nor will it be a consequence of the provision. Indeed, as noted in § 16.5(a) of the proposed regulations and as is contemplated in the FOIA itself, components are expected to re-route misdirected requests to the proper component. See 5 U.S.C. 552(a)(6)(A)(ii). For emphasis, the Department adds a new § 16.4(c) that expressly states the obligation to re-route misdirected requests.

In addition, the Department adds language to the provision to explain that the requester will receive the quickest response if the request is directed to the component that maintains the records. Requesters have another option as well. For any requester who is uncertain as to which Department component may maintain responsive records, or who simply chooses to do so, proposed § 16.3(a)(2) provides the requester with the option of submitting the request to the FOIA/PA Mail Referral Unit, which will then direct the request to the component(s) that it determines is most appropriate. The Mail Referral Unit is a long-standing service the Department provides to assist requesters who are uncertain as to where to direct their requests.

The same commenter asserted that proposed § 16.3(a)(3), which requires the submission of a certification of identity for first-party requesters and references the Department's Privacy Act regulation in subpart D on that point, should be clarified as only applying to U.S. citizens or lawful alien residents. This provision of the regulations is intended to apply to all first-party requesters, regardless of their country of origin and is intended to protect the privacy of individuals. The reference to subpart D of the regulations is merely meant to inform requesters as to the location of the requirements for verifying their identities when making requests for their own records. As a matter of policy, the Department requires verification of identity for all first-party requesters, not just requesters who are covered by the Privacy Act, to appropriately protect the privacy of all individuals and ensure that an individual's private records are not improperly disclosed to a third party. This is not a new requirement and is in the existing regulations.

One commenter expressed concern that the change in language proposed for § 16.3(c), (redesignated as § 16.3(b) in the final rule), which addresses the requirement to reasonably describe the records sought, would “establish new barriers to access.” That was not the Department's intention. We revise this section to conform to the existing regulations and add further resources for requesters to assist them in reasonably describing the records they seek. The section now provides that requesters may discuss their requests with the component's FOIA contact or its FOIA Public Liaison in advance of making a request, as well as to clarify a request already made. Further, requesters may also contact a representative of OIP for assistance. All these officials will be available to assist requesters in reasonably describing the records sought.

One commenter noted that the proposed rule deleted existing § 16.7 concerning classified information. This commenter also indicated that it was unclear whether the citation to part 17 in proposed § 16.4(d) (redesignated as § 16.4(e) in the final rule) reflects the Department's obligations with respect to such material. The Department further clarifies this provision to make clear that, in responding to requests for classified information, the component must determine whether the information remains currently and properly classified.

With respect to proposed § 16.4(e) (now incorporated into § 16.4(d) in the final rule), regarding notice of referrals, one commenter was concerned with the reference to protecting the identities of recipients of document referrals when disclosure of the recipient would itself disclose a sensitive, exempt fact. In the intervening period since the close of the second comment period, the Department has issued new guidance on consultations and referrals that requires agencies to use coordination procedures, rather than making a referral, if the recipient cannot be identified due to law enforcement or national security concerns. As a result, this provision, as well as proposed § 16.4(c) (now incorporated into § 16.4(d) in the final rule), is being revised to reflect that new Department guidance. See Office of Information Policy, “Referrals, Consultations, and Coordination: Procedures for Processing Records When Another Agency or Entity Has an Interest in Them,” (December 2011), available at www.justice.gov/oip/foiapost/2011foiapost42.html (explaining exceptions to standard procedures for making referrals and procedures for coordinating responses).

One commenter suggested that any agreements between Department components as to the processing of certain records, which was discussed in proposed § 16.4(g), should be made publicly available. This provision is intended to hasten processing by eliminating certain consults or referrals for components that share or encounter the same types of records on a regular basis. There is no requirement, however, that components create formal agreements appropriate for posting with respect to these records. In the interests of maintaining flexibility and enhancing efficiency, which are the goals of this section, no changes are being made to the provision.

One commenter contended that the portion of proposed § 16.5(a) concerning the commencement of response time for misdirected requests should be deleted. The commenter is referred to 5 U.S.C. 552(a)(6)(A)(ii) of the FOIA, which is the statutory provision establishing the time period to route misdirected requests.

Another commenter recommended that proposed § 16.5(a) require components to forward any misdirected requests to the Justice Management Division's Mail Referral Unit, rather than to the Department component that the receiving component deems most appropriate. While components are free to do so when they are uncertain as to the proper component, imposing a requirement to route all misdirected requests through the Mail Referral Unit rather than directly to the proper component would unnecessarily delay the receipt of the request by the appropriate Department component. The Department has issued guidance on the handling of misdirected requests, see Office of Information Policy, “OIP Guidance: New Requirement to Route Misdirected FOIA Requests,” (November 11, 2008), available at http://www.justice.gov/oip/foiapost/2008foiapost31.htm.

One commenter took issue with the use of the term “unusual circumstances” contained in proposed § 16.5(c) and suggested instead using the term “unforeseen circumstances.” However, “unusual circumstances” is a term of art that is taken directly from, and defined by, the FOIA. See 5 U.S.C. 552(a)(6)(B)(i).

One commenter asserted that the language from the existing regulation stating that information dissemination “need not be a [requester's] sole occupation,” 28 CFR 16.5(d)(3) should be restored in proposed § 16.5(e)(3), which pertains to expedited processing. It was not the Department's intention to narrow this standard—indeed, the example provided in the provision references a requester who is not a full-time member of the news media. To provide even greater clarity, the final rule provides that information dissemination “need not be the requester's sole occupation.”

The commenter also suggested deletion of a sentence from proposed § 16.5(e)(3) regarding the provision of news articles. The commenter noted that requesters frequently make use of news articles to demonstrate a need for expedited processing. While acknowledging that provision of news articles does not “necessarily require[] the grant of expedited processing” in all instances, the commenter objected to the proposed sentence as not recognizing the usefulness of providing articles. The Department modifies this sentence to make it clear that provision of news articles on a topic “can be helpful” to establishing that the standard is met. This language conveys more appropriately the impact of providing numerous news articles. Finally, the Department revises the final sentence of proposed § 16.5(e)(4), regarding administrative appeal of any component denial of expedited processing, to maintain the language used in the existing regulations.

One commenter suggested adding a sentence to proposed § 16.6(d) (redesignated as § 16.6(e) in the final rule), which concerns estimating the volume of information withheld, to require a listing of any documents withheld in full. Another commenter suggested that a brief description of the withheld information be provided if doing so would not reveal exempt information. While the Department understands the desire for such further detail, and encourages components to use their judgment to provide additional helpful information when practical, the Department must balance the time involved with imposing such a requirement against the heavy demands faced by many components to process thousands or tens of thousands of requests each year. In light of those demands, imposing such a requirement would be counterproductive. Contrary to the first commenter's assertion, a listing is not required at the administrative stage of processing a FOIA request. See Bangoura v. U.S. Dep't of the Army, 607 F. Supp. 2d 134, 143 n.8 (D.D.C. 2009) (holding that list of withheld documents is not required at administrative stage of processing FOIA requests and appeals).

One commenter mistakenly thought that proposed § 16.6(e) had eliminated the requirement that a denial be signed by the head of the component or a designee. The first line of § 16.6(e) in the final rule continues to contain this requirement.

An agency commenter recommended that acknowledgments of requests include a brief description of the subject of the request in order to help requesters keep track of multiple pending requests. The Department agrees and has included such language in § 16.6(b) of the final rule.

The same commenter recommended that the rule reference the statutory requirement that agencies indicate, if technically feasible, the amount of information deleted and the exemption under which each deletion is made unless doing so would harm an interest protected by an applicable exemption. The Department adds such language in § 16.6 of the final rule.

One commenter approved of the change to proposed § 16.7(b) which states that “[a] submitter of confidential commercial information must use good faith efforts to designate by appropriate markings . . . any portion of its submission that it considers to be protected from disclosure under Exemption 4.” A similar requirement is also contained in proposed § 16.7(e) for submitters relying on Exemption 4 as a basis for nondisclosure after receipt of submitter notice. However, the commenter objected to the language of proposed § 16.7(e) that also states that a submitter should provide the component with detailed reasons for withholding under any FOIA exemption. The commenter suggested the use of the word “must” instead of “should.”

The difference in the requirements is based on the nature of the information at issue. Submitters are in the best position to explain why information should be considered confidential commercial information pursuant to Exemption 4, but would not have any specialized insight into the application of other FOIA exemptions. Accordingly, although a submitter's opinion on the applicability of other FOIA exemptions is solicited, the Department does not require it because the components are best suited to make such disclosure determinations.

Two commenters took issue with the timing associated with submitting an administrative appeal set forth in proposed § 16.8(a). In response, the Department increases the time period from 45 days to 60 days. The Department notes that the use of the postmark or transmission date, rather than a “received” date, will provide a date certain for requesters to ensure, and components to ascertain, the timeliness of an appeal.

The Department also adds language in § 16.8(c) of the final rule to indicate that, when issuing a decision on appeal, it will inform the requester of the mediation services offered by the Office of Government Information Services (“OGIS”) of the National Archives and Records Administration as a non-exclusive alternative to litigation.

One commenter objected to the language in proposed § 16.9 concerning document preservation. The purpose of proposed § 16.9 is to ensure that components appropriately preserve all records that are subject to a pending request, appeal, or lawsuit under the FOIA. It was not the Department's intention to narrow the scope of the obligation and so the Department is revising the language to state: “Records will not be disposed of or destroyed while they are the subject of a pending request, appeal, or lawsuit under the FOIA.”

One commenter recommended that the regulations restate various provisions included in the 2009 President's Memorandum on the FOIA, Presidential Memorandum for Heads of Executive Departments and Agencies Concerning the Freedom of Information Act, 74 FR 4683 (Jan. 21, 2009), and the 2009 Attorney General FOIA Guidelines, Attorney General Holder's Memorandum for Heads of Executive Departments and Agencies Concerning the Freedom of Information Act, 74 FR 51879 (Oct. 8, 2009). For example, the commenter requested that the rule restate the provision in the Attorney General's FOIA Guidelines that the Department will defend in litigation a denial of a FOIA request only if the disclosure is prohibited by law or if the agency reasonably foresees that disclosure would harm an interest protected by a statutory exemption. Because this rule addresses the procedures for making and responding to FOIA requests, rather than the conduct of FOIA litigation, the Department declines to make this change. The commenter also requested that the rule restore the provision in § 16.1(a) of the existing regulations with regard to the Department's policy on making discretionary disclosures. The Department has decided to do so.

In response to the public comments and feedback from Department components with respect to the phrasing of certain provisions, the Department is revising for clarity the following provisions: § 16.1 (General provisions), § 16.3 (Requirements for making requests), § 16.4 (Responsibility for responding to requests), § 16.6 (Responses to requests), § 16.8 (Administrative appeals), and § 16.10 (Fees). The new wording more precisely states the Department's obligations with respect to consultations and referrals of documents, classified information, acknowledging receipt of requests, marking documents before release, and determining fee status.

In recognition of the greater efficiency of electronic communication, the final rule makes clear that requesters may submit requests and appeals electronically, and instructs components to communicate electronically with requesters to the extent practicable. This language is being added in § 16.3(a) (Requirements for making requests) (General information), § 16.6(a) (Responses to requests) (In general), and § 16.8(a) (Administrative appeals) (Requirements for making an appeal).

The Attorney General, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it certifies that it will not have a significant economic impact on a substantial number of small entities. Under the FOIA, agencies may recover only the direct costs of searching for, reviewing, and duplicating the records processed for requesters. Thus, fees assessed by the Department are nominal. Further, the “small entities” that make FOIA requests, as compared with individual requesters and other requesters, are relatively few in number.

This regulation has been drafted and reviewed in accordance with Executive Order 12866 (“Regulatory Planning and Review”), section 1(b) (“The Principles of Regulation”), and in accordance with Executive Order 13563 (“Improving Regulation and Regulatory Review”), section 1 (“General Principles of Regulation”).

The Department of Justice has determined that this rule is a “significant regulatory action” under Executive Order 12866, section 3(f), and, accordingly, this rule has been reviewed by the Office of Management and Budget.

Further, both Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The Department has assessed the costs and benefits of this regulation and believes that the regulatory approach selected maximizes net benefits.

The rule benefits the public by updating and streamlining the language in the Department's existing FOIA regulation. For example, the rule simplifies the assessment of fees in two ways: (1) By eliminating the presumption that requesters will pay fees up to $25 and instead providing that no fees will be assessed if the fees are under $25; and (2) by collapsing three categories of personnel into two for purposes of calculating search fees.

The rule also benefits the public by incorporating references to procedures reflecting Department guidance issued subsequent to the existing version of the regulations, such as guidance on conducting consultations, referrals, and coordination, use of exclusions, assigning tracking numbers, notifying requesters of mediation services, and routing of misdirected requests. Updating the regulation to reflect existing procedures enhances transparency and reduces the risk of confusion for requesters. There are only de minimis costs associated with incorporating the guidance changes into the rule. Many of the provisions addressed in the guidance are implemented simply by inserting standard language into correspondence, such as the language advising requesters of the mediation services offered by OGIS. Other provisions, such as those requiring assignment of tracking numbers, routing of misdirected requests, and provision of status estimates, reference procedures that components were already doing to varying degrees and so incur no meaningful new costs, and to the extent those procedures are now standardized, the time expended to comply is minimal.

The Department does not have statistics as to how many requests fall within the $15 to $25 range. Based on our experience, the Department does not expect that raising the fee threshold to $25 will have a significant effect on the number of FOIA submissions. Further, for the subset of requests where the fees are more than $14, but less than $25, the public benefits by receiving the additional value of $11 of services without charge. While the Department will incur the cost for those additional services, the cost is minimal since it is only a difference of $11 per request, and it is counterbalanced by the time savings incurred by having the rule simplified. As a result, the Department believes that the effect of the threshold change will be de minimis. It simplifies matters for Department personnel as now there is a clear line between what requesters get for free—services under $25—and when components start assessing fees—at $25. That simplification for Department personnel is a benefit. The fees that the Department currently collects from requesters represent only 0.17% of the Department's processing costs and so the slight change in the threshold for assessing fees simply does not have a measurable cost impact on the Department.

The rule further benefits requesters by changing the way in which timeliness is determined for filing administrative appeals. The rule replaces the difficult-to-determine “received” date with a date certain (a postmark), which provides requesters with clarity as to timeliness while imposing no cost on the Department.

Lastly, the rule promotes understanding of requesters' statutory fee entitlements by requiring Department components to advise non-commercial-use requesters of their right to obtain 100 pages and two hours of search time for free. This will impose few if any costs on the Department; some components already follow this procedure, and the remainder can implement it easily.

In sum, the Department is confident that the rule provides multiple benefits to the public while imposing minimal costs.

This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.

For the reasons stated in the preamble, the Department of Justice amends 28 CFR chapter I, part 16, as follows:

On January 2, 2015, the Coast Guard published a Notice of Proposed Rulemaking (NPRM) entitled “Drawbridge Operation Regulation; Hoquiam River, Hoquiam, WA” in the Federal Register (80 FR 21). We received no comments on the proposed rule. No public meeting was requested, and none was held.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective in less than 30 days after publication in the Federal Register because to wait otherwise would be impracticable because WSDOT's work will commence on April 1, 2015 and, as noted below, there is no indication that the change will have a significant impact on any waterways users.

WSDOT, who owns and operates the Simpson Avenue Bridge on the Hoquiam River in Hoquiam, Washington, has requested a change to the bridge's existing operating regulations in order to facilitate the maintenance and restoration of the bridge. The restoration project will entail painting, rust removal, and steel repairs which require a full containment system to keep paint and debris out of the Hoquiam River.

In an effort to accommodate both the needs of the waterway and highway users, WSDOT has requested a rule change in order to eliminate the need to repeatedly uninstall and reinstall the containment system. As such, the Coast Guard will change the bridge's current operating regulation from April 1, 2015 to November 30, 2015. During that time the drawbridge would be maintained in the closed position except that, upon at least two hours advance notice, one leaf of the double leaf bascule bridge would be opened.

Vessels that are able to transit under the bridge without an opening will be free to do so. However, the existing vertical navigation clearance of the closed draw span leaf (one half of the double leaf draw bridge), will be reduced from approximately 35 feet to approximately 25 feet at mean high tide and the horizontal navigation clearance will be reduced from 125 feet to approximately 52 feet. Navigation clearance reduction is due to the installation of a required containment system.

Vessel traffic along this part of the Hoquiam River consists of vessels ranging from commercial tug and barge to small pleasure craft. WSDOT has examined bridge opening logs and contacted all waterway users that have requested bridge openings throughout the last year. The input WSDOT received from waterway users indicated that the temporary rule change will have no impact on the known users.

The Coast Guard will revise the operating regulations at 33 CFR 117.1047. The regulation currently states that the Simpson Avenue Bridge shall open on signal if at least one hour notice is given. The Coast Guard will change the regulation such that from 7 a.m. on April 1, 2015 to 6 p.m. on November 30, 2015, the draw of the Simpson Avenue Bridge, on the Hoquiam River at mile 0.5, at Hoquiam, Washington, shall open half of the bascule (single leaf) when at least two hours of advance notice is given. No alternate routes are available for this waterway. Vessels that can transit under the bridge without an opening may do so at any time, although the existing vertical navigation clearance of the closed draw span (one half of the double leaf draw bridge), will be reduced from approximately 35 feet to approximately 25 feet at mean high tide and the horizontal navigation clearance will be reduced from 125 feet to approximately 52 feet. Navigation clearance reduction is due to the installation of a required containment system.

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes or executive orders.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. The Coast Guard has made this finding based on the fact that all requested bridge openings will be granted with advance notification and vessels that can safely transit under the bridge may do so at any time.

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

This rule would affect the following entities, some of which might be small entities: The owners or operators of vessels needing to transit the bridge at any time of day. This rulemaking will not have a significant economic impact on a substantial number of small entities for the following reasons: The bridge will still be able to open upon advance notification.

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

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

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule, after receiving no comments, under that Order and have determined that it does not have implications for federalism.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the “For Further Information Contact” section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

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

This rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.

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

This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have concluded that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule simply promulgates the operating regulations or procedures for drawbridges. This rule is categorically excluded, under figure 2-1, paragraph (32)(e), of the Instruction.

Under figure 2-1, paragraph (32)(e), of the Instruction, an environmental analysis checklist and a categorical exclusion determination are not required for this rule.

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

On December 2, 2005, VA published a final rule removing 38 CFR 3.5(e) and adding 38 CFR 3.10. 70 FR 72211. Section 3.10(e)(3) regards payment information for surviving spouses in receipt of Dependency and Indemnity Compensation (DIC) and clearly contains an erroneous cross reference to § 3.351(f), which regards death pension. Therefore, VA is correcting this technical error by removing the cross reference to § 3.351(f) and adding, in its place, a cross reference to § 3.351(e), the paragraph regarding DIC.

On September 30, 1997, VA published a final rule redesignating 38 CFR 3.105(h) as § 3.105(i). 62 FR 51274. However, VA failed to update the cross reference to § 3.105(h)(1) in 38 CFR 3.655(c)(4). Therefore, VA is correcting the cross reference in § 3.655(c)(4) to correctly refer to § 3.105(i)(1).

Lastly, on December 29, 2006, VA published a final rule redesignating 38 CFR 3.1000(a)(4) as § 3.1000(a)(5) and adding a new paragraph § 3.1000(a)(4). 71 FR 78368. However, VA failed to update the cross references to § 3.1000(a)(4) in §§ 3.1000(b)(3), (c)(1), and (f) and 3.1003(a). Therefore, VA is correcting the above-noted sections to correctly refer to § 3.1000(a)(5).

Pursuant to the Administrative Procedure Act, 5 U.S.C. 553(b)(B), VA has determined that prior notice and opportunity for comment on this rulemaking are unnecessary. This final rule consists of nonsubstantive, technical changes that merely amend VA's regulations to reflect the correct legal citations. For this reason, VA has also determined that there is good cause to waive the 30-day delayed effective date requirement under 5 U.S.C. 553(d)(3).

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 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 Order 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 this rulemaking and its 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.

The Secretary hereby certifies that this 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 final rule will directly affect only individuals and will not directly affect small entities. Therefore, pursuant to 5 U.S.C. 605(b), this rulemaking is exempt from the final regulatory flexibility analysis requirements of section 604.

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 64.101, Burial Expenses Allowance for Veterans; 64.104, Pension for Non-Service-Connected Disability for Veterans; 64.105, Pension to Veterans Surviving Spouses, and Children; 64.109, Veterans Compensation for Service-Connected Disability; 64.110, Veterans Dependency and Indemnity Compensation for Service-Connected Death.

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. Jose D. Riojas, Chief of Staff, Department of Veterans Affairs, approved this document on March 26, 2015, for publication.

For the reasons set out in the preamble, the Department of Veterans Affairs amends 38 CFR part 3 as follows:

This document identifies updates to the product lists, which appear as 39 CFR Appendix A to Subpart A of Part 3020—Mail Classification Schedule. Publication of the updated product lists in the Federal Register is addressed in the Postal Accountability and Enhancement Act (PAEA) of 2006.

Authorization. The Commission process for periodic publication of updates was established in Docket Nos. MC2010-21 and CP2010-36, Order No. 445, April 22, 2010, at 8.

Changes. The product lists are being updated by publishing a replacement in its entirety of 39 CFR Appendix A to Subpart A of Part 3020—Mail Classification Schedule. The following products are being added, removed, or moved within the product lists:

1. Priority Mail Contract 104 (MC2015-19 and CP2015-23) (Order No. 2302), added December 23, 2014.

2. Priority Mail Contract 103 (MC2015-17 and CP2015-21) (Order No. 2305), added December 23, 2014.

3. Priority Mail Express Contact 22 (MC2015-15 and CP2015-19) (Order No. 2307), added December 23, 2014.

4. Priority Mail Express Contract 24 (MC2015-21 and CP2015-26) (Order No. 2311), added December 30, 2014.

5. Priority Mail Contract 105 (MC2015-20 and CP2015-25) (Order No. 2317), added January 7, 2015.

6. Priority Mail Express Contract 25 (MC2015-22 and CP2015-28) (Order No. 2318), added January 9, 2015.

7. Global Expedited Package Services—Non-Published Rates Contract 5 (MC2015-23 and CP2015-29) (Order No. 2320), added January 13, 2015.

8. Priority Mail & First-Class Package Service Contract 2 (MC2015-24 and CP2015-32) (Order No. 2347), added February 6, 2015.

9. Priority Mail Contract 111 (MC2015-30 and CP2015-39) (Order No. 2352), added February 10, 2015.

10. Priority Mail Contract 108 (MC2015-27 and CP2015-36) (Order No. 2353), added February 11, 2015.

11. Priority Mail Contract 110 (MC2015-29 and CP2015-38) (Order No. 2354), added February 11, 2015.

12. Priority Mail Contract 106 (MC2015-25 and CP2015-34) (Order No. 2355), added February 11, 2015.

13. Priority Mail Contract 107 (MC2015-26 and CP2015-35) (Order No. 2356), added February 12, 2015.

14. Priority Mail Contract 109 (MC2015-28 and CP2015-37) (Order No. 2362), added February 20, 2015.

15. Priority Mail International Regional Rate Boxes Contract 1 (MC2015-31 and CP2015-40) (Order No. 2364), added February 24, 2015.

16. Priority Mail Contract 113 (MC2015-33 and CP2015-43) (Order No. 2371), added February 27, 2015.

17. Priority Mail Contract 112 (MC2015-32 and CP2015-42) (Order No. 2373), added March 2, 2015.

18. Priority Mail Contract 119 (MC2015-39 and CP2015-50) (Order No. 2393), added March 17, 2015.

19. Priority Mail Contract 117 (MC2015-37 and CP2015-48) (Order No. 2396), added March 17, 2015.

20. Priority Mail Contract 115 (MC2015-35 and CP2015-46) (Order No. 2399), added March 18, 2015.

21. Priority Mail Contract 116 (MC2015-36 and CP2015-47) (Order No. 2401), added March 19, 2015.

22. Priority Mail Contract 120 (MC2015-40 and CP2015-51) (Order No. 2403), added March 19, 2015.

23. Priority Mail Contract 114 (MC2015-34 and CP2015-45) (Order No. 2404), added March 19, 2015.

24. Priority Mail Contract 118 (MC2015-38 and CP2015-49) (Order No. 2405), added March 20, 2015.

Updated product lists. The referenced changes to the product lists are incorporated into 39 CFR Appendix A to Subpart A of Part 3020—Mail Classification Schedule.

For the reasons discussed in the preamble, the Postal Regulatory Commission amends chapter III of title 39 of the Code of Federal Regulations as follows:

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

On January 6, 2015 (80 FR 436), under section 107(d)(3) of the Clean Air Act (CAA or “Act”), the EPA proposed to revise the boundaries of the South Coast 1 and San Diego County air quality planning areas for the 1997 8-hour ozone 2 national ambient air quality standard (NAAQS or “standard”) to designate the Pechanga Reservation 3 as a separate nonattainment area for the 1997 8-hour ozone standard.4 We proposed to do so based on our conclusion that factors such as air quality data, meteorology, and topography do not definitively support inclusion of the reservation in either the South Coast or the San Diego County air quality planning areas, that emissions sources at the Pechanga Reservation contribute minimally to regional ozone concentrations, and that the jurisdictional boundaries factor should be given particular weight under these circumstances.5 Once this action is effective, the Pechanga air quality planning area for the 1997 8-hour ozone standard will have the same boundaries as the Pechanga nonattainment area for the 2008 ozone standard and the 2012 annual PM2.5 standard.6

Under CAA section 110(k), the EPA also proposed to approve the Pechanga Ozone Maintenance Plan, submitted by the Tribe on November 4, 2014, as the Tribe's TIP for maintaining the 1997 8-hour ozone standard within the Pechanga Reservation for ten years beyond redesignation, because it meets the requirements for maintenance plans under CAA section 175A.

Lastly, under CAA section 107(d)(3), and based in part on the approval of the Pechanga Ozone Maintenance Plan, the EPA proposed to grant a request from the Tribe to redesignate the newly-established Pechanga Reservation ozone air quality planning area to attainment for the 1997 8-hour ozone standard because the request meets the statutory requirements for redesignation under the Clean Air Act. References herein to our “proposed rule” refer to the proposed rule published on January 6, 2015 at 80 FR 436 through 449.

Generally, maintenance plans establish motor vehicle emissions budgets for the last year of the maintenance plan, at a minimum (40 CFR 93.118(b)(2)(i)). However, the Pechanga Tribe did not include motor vehicle emissions budgets for the last year of this maintenance plan because, at the time the maintenance plan was developed, the EPA had revoked the 1997 8-hour ozone standard for transportation conformity purposes, effective July 20, 2013. See 77 FR 30160 (May 21, 2012). However, on December 23, 2014, the DC Circuit held that the EPA lacked authority for such a partial revocation of the 1997 8-hour ozone standard and effectively reinstituted transportation conformity requirements for areas designated nonattainment for the 1997 8-hour ozone standard or redesignated to attainment with an approved CAA section 175A maintenance plan. The Court did not question the EPA's authority to revoke a standard in total. See Natural Resources Defense Council v. EPA (D.C. Cir. No. 12-1321, December 23, 2014). Since the Court's decision, the EPA has published a final rule that, among other things, revokes the 1997 ozone NAAQS for all purposes, including transportation conformity, effective April 6, 2015. See 80 FR 12264 (March 6, 2015). After that date, transportation conformity will no longer be required for the 1997 8-hour ozone standard. The Pechanga Reservation air quality planning area will remain designated nonattainment for the 2008 ozone standard, and transportation conformity continues to apply for that NAAQS.7

As we explained in our proposed rule, upon the effective date of our action, certain CAA requirements that had applied to the Pechanga Reservation by virtue of its inclusion in the South Coast “Extreme” ozone nonattainment area for the 1-hour ozone standard no longer apply, nor do the requirements that had applied to the reservation by virtue of its designation as “Severe-17” for the 1997 8-hour ozone standard. The requirements that no longer apply include, among others, the nonattainment New Source Review (“NNSR”) major source threshold of 10 tons per year (tpy) for ozone precursor emissions in “Extreme” ozone nonattainment areas. New or modified stationary sources proposed at the Pechanga Reservation remain subject to major source nonattainment NNSR, however, by virtue of the reservation's classification as a “Moderate” ozone nonattainment area for the 2008 ozone standard. The NNSR major source threshold in “Moderate” ozone nonattainment areas is 100 tpy for VOC or NOX.

In our proposed rule, we also explained that, in concluding that it is appropriate to propose approval of the Tribe's request for boundary changes and designation to attainment for the 1997 8-hour ozone standard, the EPA relies heavily on the fact that this is a request from a federally-recognized tribal government. The Pechanga Tribe has been determined previously to qualify for treatment in the same manner as a state (also referred to as “TAS”) for purposes of CAA section 107(d) and sections 110 and 175A and the submitted maintenance plan, and the lands under consideration here are subject to the EPA's Tribal Designation Policy. The EPA finds that the Tribe's request for a separate area is consistent with the principles set forth in that policy.

The EPA also explained in the proposed rule that our proposed action relies on the facts that there are valid monitoring data showing that current air quality at the Pechanga Reservation meets the 1997 8-hour ozone standard and that the emissions from sources on the Pechanga Reservation are minimal and do not contribute in any meaningful way to ambient concentrations in any nearby ozone nonattainment area. Finally, we noted that the action to establish a separate air quality planning area would simplify implementation of the ozone standards by eliminating the division of the reservation into two different planning areas for the same criteria pollutant standard, the 1997 8-hour ozone standard. This separate treatment of the Pechanga Reservation is consistent with the EPA's prior final actions to reclassify the South Coast ozone nonattainment area in 2010, to establish a separate air quality planning area for the 2008 ozone standard in 2012, and to establish a separate air quality planning area for the 2012 annual PM2.5 standard in 2015. In summary, we noted in our proposed rule that the proposed changes in the boundaries and the status of this area are supported by several unique factors that are unlikely to be present in other nonattainment areas.

Please see our proposed rule and related technical support document (TSD) for additional background information about the Pechanga Reservation, the regulatory context, the Tribe's request for a boundary change, and the Tribe's redesignation request, as well as a more detailed explanation of our rationale for the proposed actions.

Our proposed rule provided for a 30-day comment period. During this period, we received comments from the South Coast Air Quality Management District (SCAQMD or “District”).8 We have summarized the comments, and provide responses in the paragraphs that follow.

SCAQMD Comment #1: The SCAQMD states that it knows of no precedent for the EPA to determine the attainment status for an entire separate nonattainment area based on monitors located outside that area, at least where the data are being used to support redesignation from nonattainment to attainment. In addition to the lack of precedent, the SCAQMD also cites statements by the EPA to the effect that monitoring requirements apply “in the area;” the EPA's definition of “design value,” which refers to the highest site “in any attainment area or nonattainment area;” and the decision by the EPA not to designate the Pechanga Reservation as a separate “attainment” area for the 2008 ozone standard based on the lack of a regulatory monitor at the reservation, as support for the SCAQMD's conclusion that EPA's regulations do not authorize monitoring data collected outside a given nonattainment area to be used as the basis for determining whether a nonattainment area is attaining the NAAQS for the purposes of redesignation. Lastly, the SCAQMD contends that the EPA must justify its approach and must demonstrate why it will not lead to further attempts by areas within the South Coast to establish separate ozone planning areas to obtain the benefits of a lower ozone classification or a redesignation to attainment.

Response to SCAQMD Comment #1: As described at pages 442 and 443 of our proposed rule, we proposed a finding of attainment based on (1) ozone data collected at a monitor (the “Temecula” monitor) located approximately 10 miles north of the Pechanga Reservation and (2) a comparison of Temecula data with available data from the Pechanga ozone monitor. The Temecula data establishes an ozone design value below the 1997 8-hour ozone standard, and the Pechanga data, which includes two complete years (2012 and 2013) of regulatory data, provides the basis for comparison with corresponding Temecula data and thereby establishes representativeness.

Thus, we are not relying solely on the out-of-area data in that we determined that the Temecula data was representative of ozone conditions on the Pechanga Reservation based in part on quality-assured and certified ambient ozone data collected at the regulatory monitor operated on the Pechanga Reservation. Data collected from the Pechanga monitor includes two complete years (2012 and 2013) with which to compare data from the Temecula data, and as shown in table 1 of our proposed rule (80 FR at 443), the fourth highest 8-hour ozone concentrations track very closely at the two sites during those two years, which is expected considering that ozone pollution is regional in nature, the two monitors are only 10 miles apart, and no significant topographic barriers lie between the two monitoring sites.

Also, since publication of the proposed rule, additional preliminary data for year 2014 has become available from both the Temecula and Pechanga monitors. Table 1 below presents the data for 2012 and 2013 previously presented in the proposed rule and adds preliminary data for 2014. While available preliminary 2014 data suggests that higher ozone concentrations were measured at the Pechanga monitor than at the Temecula monitor, the comparison of data between the two sites for 2014 is constrained by the fact that available preliminary 2014 data for Temecula only runs through the end of September 2014 and that data from August 29th-September 17th, which is during the peak ozone season, is missing because of a data logger problem, whereas the 2014 data from the Pechanga monitor reflects all four quarters. Despite its limitations, the available preliminary data for 2014 continues to be consistent with our proposed determination of attainment (which is based on complete, quality-assured, and certified data from the Temecula monitor for years 2011-2013) and is, at the very least, not inconsistent with our determination that the Temecula data are representative of ozone conditions at the Pechanga Reservation. Please see the docket of this final action for an updated analysis that further demonstrates the representativeness of the Temecula data for the purposes of this action.9

Our decision to rely on the Temecula data to determine that the Pechanga Reservation has attained the 1997 8-hour ozone standard is not inconsistent with the EPA's decision not to grant Pechanga's request for designation as a separate attainment area for the 2008 ozone standard. The SCAQMD is correct that, in our final rule designating areas for the 2008 ozone standard (77 FR 30088, May 21, 2012), we decided not to designate the Pechanga Reservation as a separate attainment area on the grounds that the Pechanga Tribe did not operate a regulatory monitor that showed that the area in fact was attaining the 2008 ozone standard.10 Instead, we designated the Pechanga Reservation as a separate nonattainment area for the 2008 ozone standard, and we did so based on ozone data from a proximate, state regulatory monitor (at Lake Elsinore). At the time of the designation for the 2008 ozone standard, the SCAQMD's Temecula monitor, which began monitoring ozone in Fall of 2010, only had one year of complete ozone data, and the SCAQMD's Lake Elsinore monitoring site was the nearest proximate regulatory ozone monitor with complete data.

The EPA has considered the Pechanga monitor as a regulatory monitor since May 2010, but we invalidated the regulatory data collected prior to the correction of an equipment problem discovered in 2011 (and discussed below in Response to SCAQMD Comment #2), and thus the data from the Pechanga monitor were unavailable for use for the purposes of designating areas for the 2008 ozone standard. Regulatory monitors are those for which the monitoring objective is comparison with the NAAQS and that have adequately achieved the quality assurance and data requirements for regulatory decision making. As noted in our proposed rule (at 80 FR at 477), the Pechanga Tribe has committed in its maintenance plan to continue operating an ambient ozone monitor at the reservation, quality assuring the resulting monitoring data, and entering all data in AQS in accordance with federal requirements and guidelines to verify continued attainment of the 1997 8-hour ozone standard.

Lastly, as to the potential for other areas within the South Coast to rely on out-of-area monitoring data to establish separate ozone planning areas to obtain the benefits of a lower ozone classification or a redesignation to attainment, we note that each request for a boundary change or a change in designation from “nonattainment” to “attainment” is evaluated on a case-by-case basis to determine whether all applicable CAA requirements are met, and different criteria apply depending upon the type of request. For boundary change requests, the EPA takes into account a number of factors, including air quality data, emissions sources, geographical and meteorological considerations, and jurisdiction, among others, when evaluating such requests. It is not necessarily the case that the same set of factors supporting our action on Pechanga Tribe's request for a separate area for the 1997 8-hour ozone standard would be relevant to (or would support) any other tribe's request for such a change. Requests for redesignation from “nonattainment” to “attainment” from states or tribes are evaluated based on the criteria set forth in CAA section 107(d)(3)(E).

SCAQMD Comment #2: The SCAQMD suggests that the ambient values of monitoring data from the Pechanga monitor are increasing over time while the monitoring data from the SCAQMD Temecula monitor are decreasing. Based on that assertion, the SCAQMD does not believe that the SCAQMD Temecula monitoring data are representative of air quality on the Pechanga Reservation and asserts that, based on their conclusion that an upward trend in concentrations is occurring at the reservation, the maintenance plan does not demonstrate that it will maintain levels below the standard for the next ten years. The SCAQMD requests that the EPA provide a reasoned explanation demonstrating that this observed increasing trend at the Pechanga Reservation is not real, and that Pechanga ozone levels are actually decreasing as would be expected if Temecula data were representative.

Response to SCAQMD Comment #2: The Pechanga Tribe began operation of an ozone monitor in mid-2008. In 2011, the EPA discovered an equipment problem at the Pechanga monitor that had the effect of diluting ambient ozone concentrations recorded by the monitor. The problem was corrected by the Tribe later in 2011, and the EPA considers the data collected since the problem was corrected to be valid for regulatory purposes. Conversely, the EPA considers the data collected prior to correction of the equipment problem to be invalid for NAAQS comparison purposes. The basis for invalidating the data are a comparison of ozone concentrations measured at other ozone monitors in the region that shows artificially low ozone readings at the Pechanga monitoring site throughout all of 2009, and all of 2010, suggesting that the equipment problem affected data values throughout those periods.11 Since the problem was corrected, in contrast to the earlier-collected data, the ozone data from the Pechanga monitor track well with other monitors in the region, particularly the Temecula monitor.

Given that the data collected at the Pechanga monitor from 2008 through 2011 (i.e., until equipment correction in late 2011) are invalid, we disagree with the SCAQMD's contention that the data shows that ozone concentrations have trended upward at the Pechanga Reservation but have trended downward at the Temecula site. While the preliminary data for 2014 collected at the Pechanga and Temecula sites are useful in showing that both monitors remain well below the 1997 8-hour ozone standard, we do not believe that a conclusion can be drawn regarding potential differences in ozone concentration trends at the two sites. First, the preliminary 2014 Temecula data has the potential to be artificially low due to missing data during the peak ozone season (see Response to SCAQMD Comment #1). Second, because we only have two complete years of data (2012 and 2013) and one year of preliminary data (2014) from the Pechanga monitor, we do not believe that we have sufficient data to establish a long-term trend of ozone concentrations at the Pechanga Reservation. However, we need only three years of data for an attainment determination, and we have three years of complete, quality-assured and certified data showing that the ozone concentrations at the Temecula site meet the 1997 8-hour ozone standard. Also, taking into account preliminary 2014 data, we now have three years of ambient ozone concentration data from the Pechanga monitor that show a preliminary design value for 2012-2014 of 0.076 ppm, i.e., well below the 1997 8-hour ozone standard (0.084 ppm or less). Moreover, as cited in our proposed rule (on page 440), with respect to our determination of representativeness, we are not relying solely on the limited ozone data from the two monitors but are also relying on modeling data published by the SCAQMD.12

As to future ozone concentrations, the Pechanga Ozone Maintenance Plan's demonstration of maintenance through 2025 is not based on an evaluation of ambient ozone trends but rather on an evaluation of emissions inventory data for the South Coast that shows a downward trend in ozone precursor emissions (VOC and NOX) through the maintenance period. See table 2 of our proposed rule at 80 FR 447. Generally, maintenance plans can demonstrate maintenance of the standard by either showing that future emissions of a pollutant or its precursors will not exceed the level of the attainment inventory, or by modeling to show that the future mix of sources and emission rates will not cause a violation of the standard.13 In the proposed rule, we agree that the downward trend in regional emissions of ozone precursors is sufficient to demonstrate maintenance of the 1997 8-hour ozone standard through 2025. We also note, however, that modeling results published by the SCAQMD is consistent with our approval of the maintenance demonstration in the Pechanga Ozone Maintenance Plan.14

SCAQMD Comment #3: The SCAQMD contends that the maintenance plan fails to include sufficient control measures to prevent adverse effects from emissions growth on the reservation. Specifically, SCAQMD seeks confirmation that the EPA's minor NSR Federal Implementation Plan (FIP) for Indian country applies on the Pechanga Reservation, but notes that, even if it does apply, the EPA may not have adequate resources to properly implement such a program. Further, the SCAQMD is concerned that new or modified stationary sources will not necessarily be subject to the same requirements (such as those related to control technology and offsets) under the EPA's Indian country minor NSR rule as would apply if the sources were proposed in areas subject to the SCAQMD's jurisdiction. The SCAQMD contends that different requirements for new or modified stationary sources, particularly the increase in the applicable NNSR major source threshold from 10 tpy to 100 tpy for VOC and NOX due to this action, will create a significant competitive advantage and attract development beyond that anticipated in the maintenance plan. Further, the SCAQMD further contends that such unanticipated growth could result in higher-than-expected emissions with the potential to adversely affect ozone air quality downwind of the reservation.

Response to SCAQMD Comment #3: We do not agree with the SCAQMD's assertions. First, in our proposed rule, we indicate that EPA's regulations governing review and permitting of new or modified stationary sources in Indian country 15 (i.e., “New Source Review” or NSR) apply to the Pechanga Reservation. See 80 FR at 443 and 444. These regulations include the EPA's Indian country minor NSR program, codified at 40 CFR 49.151 through 49.161, and the Indian country major NSR program for nonattainment areas (referred to as “nonattainment NSR” or “NNSR”), codified at 40 CFR 49.166 through 49.173. The EPA's regulations for the prevention of significant deterioration (PSD), codified at 40 CFR 52.21, also apply to any new major source or major modification proposed at the Pechanga Reservation except for the emissions from such source or modification that are covered by NNSR.

Second, as to whether the EPA has adequate resources to properly implement the Indian country minor source program, we note that, historically, the EPA has administered the PSD program under 40 CFR 52.21 in many parts of California but that, in recent years, the EPA has successfully transferred its PSD permitting responsibilities to the relevant California air districts. We have done so by working with the air districts and the California Air Resources Board (CARB) to develop, adopt and submit permitting rules that meet the PSD SIP requirements. Once approved, the responsibility for PSD permitting vests in the air districts, and while the EPA continues to have a role in district PSD permit reviews, the resource demands are far fewer than where the EPA must administer the entire PSD program in a given district. Moreover, EPA permitting resources that had been used to draft PSD permits in these districts can then be reassigned to other tasks, including those related to the Indian country minor NSR program. Since 2012, the EPA has approved the PSD SIPs for the following California air districts: San Joaquin Valley Unified Air Pollution Control District (APCD) (77 FR 65305, October 26, 2012); and Eastern Kern APCD, Imperial County APCD, Placer County APCD, and Yolo-Solano Air Quality Management District (77 FR 73316, December 10, 2012).

In addition, as the SCAQMD notes in its comments, the EPA can lighten its load by implementing “general permits,” and as the SCAQMD also notes, the EPA has proposed, but not yet finalized, such permits for the Indian country minor NSR program. Our proposed general permits cover 11 broad source categories that we expect to be most relevant in the context of Indian country minor NSR. See 79 FR 2546 (January 14, 2014) and 79 FR 41846 (July 17, 2014). We expect to finalize the first set of general permits (i.e., those proposed in January 2014) in the near term, and such permits will streamline the permitting process for the EPA in connection with administration of the Indian country minor NSR program.

Third, the EPA notes that, with or without this action, new or modified sources on the Pechanga Reservation are already subject to the requirements of the EPA's Indian country NSR rules, as cited above. Our action today does not change this fact or change the stringency of EPA's Indian country NSR rules. We recognize that, in some respects, EPA's Indian country NSR rules are less stringent than the corresponding requirements under the SCAQMD's NSR rules that apply outside Indian country in the South Coast. For example, under the SCAQMD's NSR rules, certain new or modified minor sources are subject to offset requirements whereas no such requirements apply under the EPA's Indian country minor NSR rule. However, with respect to control technology requirements, while the Indian country NSR rules do not specifically require new or modified minor sources to meet best available control technology (BACT) or lowest achievable emission rate (LAER) level of control per se, the rules do require the EPA (or the Indian Tribe in cases where a Tribal agency is assisting the EPA with administration of the program through a delegation) to conduct a case-by-case control technology review to determine the appropriate level of control, if any, necessary to assure that the NAAQS are achieved, as well as the corresponding emission limitations for the affected emission units at the new or modified source. See 40 CFR 49.154(c). In carrying out this determination, among other considerations, the EPA takes into account typical control technology or other emission reduction measures used by similar sources in surrounding areas. See 40 CFR 49.154(c)(1)(ii). Thus, the corresponding control technology requirements (i.e., minor source “BACT”) that the SCAQMD applies to minor sources subject to its authority would inform the EPA's determination regarding control technology requirements and associated emission limitations for new or modified minor stationary sources on the Pechanga Reservation.

Nonetheless, we recognize that our actions today will result in an increase in the applicable major source NSR threshold from 10 tpy to 100 tpy for ozone precursor emissions, which means that new or modified sources on the Pechanga Reservation with potential to emit (“PTE”) between 10 and 100 tpy of VOC or NOX will no longer be subject to the LAER and emissions offset requirements that otherwise would have applied under the EPA's Indian country major source NNSR rule but instead will be subject to the control technology review described above for new or modified minor sources under the EPA's Indian country minor NSR rule. However, applicable air pollution regulations and requirements are but one of many factors that influence business development decisions and we do not have information that supports a conclusion that the Pechanga Reservation will attract new development at such a rate as to result in emissions growth beyond that anticipated in the Pechanga Ozone Maintenance Plan.

Fourth, the Pechanga Ozone Maintenance Plan projects that current stationary source emissions at the Pechanga Reservation will increase 33 percent for NOX over the same period.16 The basic assumption used to develop these projections is that, over the next ten years, the Pechanga Resort and Casino would experience steady growth that would lead to increased NOX emissions by sources such as the existing boilers due to greater usage rates. We believe that the plan's assumption that, over the next ten years, changes in emissions at the reservation will stem from expansion of the existing resort and casino, rather than from development of new types of commercial or industrial businesses, is reasonable.

The SCAQMD is correct in noting that the Pechanga Ozone Maintenance Plan's projection in emissions associated with the Pechanga Reservation do not account for emissions growth from significant new stationary sources; however, there is no evidence of any specific new stationary sources that are proposed at the reservation, and as noted above, air pollution control considerations are simply one of many considerations that businesses take into account when deciding to develop at a given site. Without such evidence, the EPA declines to speculate on the types or number of new stationary sources that might locate at the reservation over the next ten years (or their associated emissions and downwind impacts) on account of the change in air pollution control requirements (i.e., higher major source threshold for NNSR). Furthermore, any new stationary sources would be subject to the EPA's review under the Indian country minor NSR rules,17 the Indian country NNSR rules, or the PSD regulation. All three programs provide for control technology review and air quality impacts analysis, and thus, we can reasonably rely on such review to ensure that emission growth from new or modified stationary sources at the Pechanga Reservation is controlled to the extent necessary to protect air quality at the reservation and at locations downwind of the reservation. Concerning the SCAQMD's concern that new construction on the Pechanga Reservation could cause attainment problems in other areas, the EPA's and the Tribe's responsibilities to other areas could be addressed under CAA sections 110(a)(2)(D)(i)(I) and 126.

SCAQMD Comment #4: The SCAQMD challenges the EPA's reliance on upwind, out-of-area controls that do not apply on the Pechanga Reservation as constituting acceptable “other permanent and enforceable measures” that provide permanent and enforceable reductions and related improvement in air quality as required for redesignation under CAA section 107(d)(3)(E)(iii). The SCAQMD contends that, while some reliance on out-of-area controls may be appropriate, the EPA's near-total reliance on such controls is not reasonable. The SCAQMD believes that local areas must also do their part to improve air quality and reach attainment of the standard.

Response to SCAQMD Comment #4: CAA section 107(d)(3)(E)(iii) is one of five statutory criteria that the EPA must use to evaluate requests for redesignation of an area from nonattainment to attainment. It precludes such redesignation unless the EPA determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable implementation plan and applicable federal air pollution control regulations and other permanent and enforceable reductions. (In this context, “applicable implementation plan” refers to the TIP.) As such, the criterion calls for the identification of the measures that provided the emissions reductions that resulted in corresponding reductions in ambient concentrations such that, where the standard was once violated, the standard is now attained. The evaluation under section 107(d)(3)(E)(iii) also involves a determination that the improvement in air quality is not due to temporary reductions in emission rates due to temporary adverse economic conditions or unusually favorable meteorology.18

The purpose of the criterion is to ensure the permanence and enforceability of reductions that have provided for improved air quality and attainment of the standard. The statute does not qualify the phrase “other permanent and enforceable reductions” with a reference to those reductions that are in effect in the area, and thus, it does not matter whether the measures responsible for attainment are in effect in the area for which a redesignation request is being evaluated but only that they are permanent and enforceable.19 For instance, it is common knowledge that states in the Eastern United States rely in part on emissions reductions from measures adopted by upwind states in attaining the standard. The degree of reliance differs among the states, of course, but those measures adopted in the upwind states qualify as “other permanent and enforceable reductions” for the purposes of CAA section 107(d)(3)(E)(iii). Given the language of this particular phrase of section 107, reliance on the legislative history for interpretative purposes is not necessary, but the EPA, in response to this comment, did review the relevant legislative history and found no indication of any special meaning or limitation to the phrase “other permanent or enforceable reductions” for the purposes of redesignation.20 Absent clear legislative history to the contrary, the EPA's interpretation of the statute is reasonable.

In this instance, we found that the improvement in air quality at the Pechanga Reservation is the result of permanent and enforceable emissions reductions from applicable federal air pollutant control regulations, particularly those that control emissions from on-road and nonroad vehicles, and “other permanent and enforceable reductions” from upwind sources resulting from CARB and SCAQMD regulations. See our proposed rule at page 446. All of the relevant CARB and SCAQMD regulations are either subject to a waiver or authorization under CAA section 209 or are approved by the EPA into the California SIP, and thus are permanent and enforceable for the purposes of CAA section 107(d)(3)(E)(iii).

As to the SCAQMD's contention that, while some reliance on upwind out-of-area reductions may be appropriate, local areas must do their part, we note that, with respect to section 107(d)(3)(E)(iii), the statute simply requires the EPA to conclude that the measures that caused the improvement in air quality are permanent and enforceable. In this case, the identified measures on which we rely are permanent and enforceable, and they resulted in, and will continue to result in, reduced ozone concentrations on the Pechanga Reservation. The SCAQMD does not identify any specific measure that it believes should have been imposed within the reservation. Instead, the SCAQMD simply asserts that it is unreasonable for the EPA to find that section 107(d)(3)(iii) is satisfied in a given area without significant local controls in that area.

SCAQMD Comment #5: The SCAQMD states that the EPA must ensure that the Pechanga Ozone Maintenance Plan does not underestimate existing and future emissions at the reservation. The SCAQMD suggests that the maintenance plan may be underestimating such emissions because the on-road mobile emissions estimates were scaled to South Coast projections based on relative population (i.e., the population of the Pechanga Reservation relative to the overall population within the South Coast) whereas the Pechanga Resort and Casino generates a significant number of vehicle trips that are unrelated to the population of the reservation.21

Response to SCAQMD Comment #5: The SCAQMD is correct that the emissions inventory for the Pechanga Reservation in the Pechanga Ozone Maintenance Plan is based on a population of approximately 500 (the actual number used for the estimates is 467) and that on-road mobile emissions were scaled based on relative population. First, with respect to population, the population of Pechanga Reservation (467 full-time residents) used in the Pechanga Ozone Maintenance Plan to scale regional emissions is correct. The higher value (800 residents) cited in the proposed rule at page 437 is incorrect.

Second, we agree that use of scaling of regional emissions based on population may underestimate on-road mobile emissions at the Pechanga Reservation given the significant number of non-resident motor vehicle trips generated by the Pechanga Resort and Casino. Therefore, for this final rule, we re-calculated vehicle emissions using EMFAC2011 emissions factors for year 2012 based on the following assumptions: 17,100 average daily vehicle trips associated with non-residents and 1,870 daily vehicle trips associated with residents; 22 0.5 miles per trip on the reservation for non-resident trips and 2.0 miles per trip on the reservation for trips by reservation residents; and a non-resident vehicle mix based on data from another Indian casino and resort. Resident trips were assumed to be light-duty autos and trucks.

For year 2025, we conservatively increased non-resident vehicle trips by 33% and estimated the corresponding emissions using year 2025 emissions factors from EMFAC2011. Interim year (2015 and 2020) emissions were estimated by interpolating the number of trips between 2012 and 2025 and using the applicable year's EMFAC2011 emissions rates. We present the revised emissions estimates in table 2 below, which presents the same emissions inventory information as table 2 from the proposed rule except for the revised estimates for the Pechanga Reservation.23

Based on the revised calculations for on-road emissions at the Pechanga Reservation, emissions at the Pechanga Reservation are estimated to be several times higher than presented in the Pechanga Ozone Maintenance Plan and in the proposed rule but are predicted to decrease through the maintenance period due to significant reductions in vehicular emissions resulting from continued implementation of state and federal motor vehicle control programs. Moreover, our conclusion from the proposed rule that the emissions associated with the Pechanga Reservation are minimal in relation to regional ozone precursor emissions remains unchanged given that, even as revised, Pechanga Reservation emissions represent 0.03% or less of regional emissions of VOC and NOX for all of the years that were analyzed.

SCAQMD Comment #6: The SCAQMD states that the EPA fails to explain its legal theory that would allow the Tribe to fail to identify specific contingency measures in its maintenance plan.

Response to SCAQMD Comment #6: CAA section 175A(d) requires that maintenance plans contain such contingency provisions as the EPA deems necessary to assure that the State will promptly correct any violation of the standard which occurs after the redesignation of the area as an attainment area. Such provisions shall include a requirement that the State will implement all measures with respect to the control of the air pollutant concerned which were contained in the SIP for the area before redesignation of the area as an attainment area. In this context, the reference to “State” and “SIP” in CAA section 175A corresponds to “Tribe” and “TIP.”

Generally, the EPA believes that, to meet the requirements of CAA section 175A(d), contingency provisions of maintenance plans should identify the measures to be adopted, a schedule and procedure for adoption and implementation, and a specific time limit for action by the State.24 However, the CAA does not require that specific contingency measures be identified other than those measures that were part of the control strategy that a State or Tribe relied on to attain the standard but is not relying on for maintenance of the standard and is no longer retaining as an active measure in the SIP or TIP. No such measures exist for the Pechanga Reservation.

Notwithstanding the absence of a statutory requirement for specific contingency measures, as noted above, the EPA generally deems it necessary for contingency provisions of maintenance plans to identify specific measures to assure that the State or Tribe will promptly correct any violation of the standard which occurs after the redesignation of the area as an attainment area. Relevant considerations for the EPA in this regard include the probability of a future violation of the standard (based on how close the area is to violating the standard, emissions or ambient concentration trends, and the variability of ambient concentrations from year to year) and the reasonable foreseeability of specific sources or source categories as likely to be responsible for future violations if they occur.

In this instance, the ambient concentrations (0.077 ppm based on 2011-2013 data collected at the Temecula monitor) are below the applicable NAAQS (0.08 ppm), and the emissions trends in the South Coast show steep declines of both VOC and NOX between 2012 and 2025 (see table 2 of the proposed rule), and thus there is a relatively low probably of a future violation of the 1997 8-hour ozone standard at the Pechanga Reservation. Moreover, any future violation of the 1997 8-hour ozone standard at the Pechanga Reservation is unlikely to be caused by sources at the reservation given the predominant influence of upwind transport of ozone from upwind metropolitan areas in the South Coast. Therefore, the contingency provisions of the Pechanga Ozone Maintenance Plan include annual review of the ozone data and, in the event of a monitored violation, a commitment to work with the EPA to identify, adopt, and implement any additional necessary and appropriate measure(s) needed to promptly correct the violation.25 Under the particular circumstances described above, the EPA has found that the contingency provisions of the Pechanga Ozone Maintenance Plan meet the requirements of section 175A(d), even though the Pechanga Ozone Maintenance Plan identifies no specific contingency measures for adoption by the Tribe or the EPA.

SCAQMD Comment #7: The SCAQMD asserts that the EPA's proposal to create a separate attainment area for the Pechanga Reservation for the 1997 8-hour ozone standard is inconsistent with the EPA's Tribal Designations Policy. More specifically, the SCAQMD states that the EPA must explain why it fails to take into account the fact that the Pechanga Reservation is not separate from the adjacent South Coast or San Diego areas by topographic or other geographic features whereas the policy cites the presence of topographic or other geographic barriers as a factor to consider where a Tribe submits a request for a separate attainment area adjacent to a nonattainment area.

The SCAQMD notes the EPA's decision to give “particular weight” to the “jurisdictional boundaries” factor in its tribal designation policy but asserts that the EPA fails to explain what that means, and to the extent that the EPA is referring to the fact that a small part of the Pechanga Reservation is located in San Diego County, this factor should not be determinative because two of the considerations cited by the EPA in evaluating the “jurisdictional boundaries” factor are not well-grounded. First, the SCAQMD states that the Tribe acquired lands in San Diego County only recently and that historically the entire reservation has been included in the South Coast. Second, the SCAQMD acknowledges that the Tribe operates its own monitor but suggests that the statement of the Tribe's interest in developing its own permitting program is not genuine because the redesignation request is devoid of any plans by the Tribe to establish an air permitting program or any other regulation. The SCAQMD further suggests that the proposed action essentially amounts to a determination that, given the particular weight for the jurisdictional boundaries factor, the EPA will grant a request for a separate area for any tribe that operates a monitor, even if it does not meet federal requirements.

Response to SCAQMD Comment #7: We do not agree. First, the EPA has proposed action on two separate requests: (1) the Tribe's June 23, 2009 boundary change request to establish a separate ozone nonattainment area; and (2) the Tribe's May 9, 2014 request to redesignate the Pechanga Reservation from nonattainment to attainment for the 1997 8-hour ozone standard. The second request of course presumes an affirmative response by the EPA to the first request. The EPA has chosen to take action on both requests in the same document, but different considerations and criteria apply to the different actions. For instance, some considerations that are germane to the evaluation of the Tribe's 2009 boundary change request are not germane to the evaluation of the Tribe's 2014 request for redesignation. Thus, it follows that some information from the 2009 request would not be repeated in the 2014 redesignation request. For example, the existence of a tribal permitting program is not a requirement for redesignation, but the tribe's interest in developing such a program prospectively is a consideration for the boundary change.

Second, the EPA believes that a request from a tribe for a separate nonattainment or attainment area should be supported by data from a tribe's own regulatory monitor or, at the very least, by data from a proximate regulatory monitor that is representative of air quality in the tribe's Indian country area. In this case, the Pechanga operates its own regulatory monitor, and in addition, there is a proximate representative monitor operated by the SCAQMD at the Temecula monitoring site. The EPA did not rely on the Tribe's ozone data for this action because the data was not complete over the 2011-2013 period, not because the monitor was non-regulatory.

Third, the SCAQMD is correct in noting that the EPA, in evaluating the “geography/topography” factor as part of our evaluation of the Tribe's boundary change request, concluded that there are no significant topographic barriers to air flow in the area. However, our Tribal Designations Policy calls for a multi-factor evaluation of requests for designation of separate tribal air quality planning areas or requests for a boundary change to establish such areas. The “geography/topography” factor is but one of the various factors we take into account. In this instance, we concluded that, considering the three factors of air quality data, meteorology, and topography, the EPA could reasonably include the Pechanga Reservation in either the South Coast air quality planning area to the north, or the San Diego County air quality planning area to the south, or alternatively, the EPA could establish a separate nonattainment area for the Pechanga Reservation as it did for the 2008 ozone standard, and more recently, for the 2012 annual PM2.5 standard. See page 441 of our proposed rule.

Further, taking into account the minimal emissions associated with activities on the Pechanga Reservation and the corresponding minimal contribution from Pechanga-related emissions sources to regional ozone levels, we concluded that it was appropriate, and consistent with the principles of the Tribal Designations Policy, to give particular weight to the jurisdictional boundaries factor. Under this factor, we consider what the existing jurisdictional boundaries are for the purposes of providing a clearly defined legal boundary of the area pertaining to the designation or boundary change request and carrying out air quality planning and enforcement functions. When the Pechanga Tribe acquired parcels in San Diego County is not germane.26 What is germane is the fact that the Pechanga Reservation now lies within two different counties (Riverside and San Diego Counties) and thus straddles two different ozone areas for the 1997 8-hour ozone standard (South Coast and San Diego County) and that the Pechanga Reservation is a separate air quality planning area for the 2008 ozone standard. By establishing a separate area for the Pechanga Reservation for the 1997 8-hour ozone standard, the EPA will be aligning the air quality planning areas the two ozone standards thereby simplifying air quality planning and permitting functions at the reservation.27

As noted above, in this instance, we are giving “particular weight” to the jurisdictional boundaries factor. This means that the jurisdictional factor outweighs other factors that might otherwise counsel against establishment of a separate air quality planning area. In this case, for example, the relevant Indian country area is significantly impacted by upwind sources, a fact that may otherwise support inclusion of the Indian country area in a larger area. However, we have decided that, in this instance, such considerations are outweighed by the jurisdictional boundaries factor and thus proposed to grant the request by the Tribe for a separate area. Our giving of particular weight to the jurisdictional boundaries factor is appropriate given the minimal emissions associated with activities on the Pechanga Reservation, the corresponding minimal contribution from Pechanga-related emissions sources to regional ozone levels, and the location of the reservation on the border of two separate larger areas, is consistent with Tribal Designations Policy. See page 7 of the Tribal Designations Policy for examples of circumstances in which the jurisdictional boundaries factor may bear the most weight in evaluating requests for a separate area.

SCAQMD Comment #8: The SCAQMD contends that the EPA's action to establish the Pechanga Reservation as a separate air quality planning area for the 1997 8-hour ozone standard is inconsistent with the principles that EPA articulated in a previous rulemaking in which the Agency reclassified Indian country (except for the Morongo Reservation and Pechanga Reservation) within the South Coast consistent with the State's request for reclassification of lands under State jurisdiction within the South Coast from “Severe-17” to “Extreme.”

The previous rulemaking to which the SCAQMD refers, “Designation of Areas for Air Quality Planning Purposes; California; San Joaquin Valley, South Coast Air Basin, Coachella Valley, and Sacramento Metro Ozone Nonattainment Areas; Reclassification,” was proposed at 74 FR 43654 (August 27, 2009) and finalized (except for the Morongo Reservation and Pechanga Reservation) at 75 FR 24409 (May 5, 2010). As the SCAQMD notes, in the previous rulemaking, the EPA based its decision to reclassify areas of Indian country (other than the Morongo Reservation and Pechanga Reservation, for which final action was deferred) on such considerations as: (1) Boundaries of nonattainment areas are drawn to encompass both areas of direct sources of the pollution problem as well as nearby areas in the same airshed; (2) Emissions changes in lower-classified areas could hinder planning efforts to attain the NAAQS within the overall area through the application of less stringent requirements relative to those that apply in the area with a higher ozone classification; and (3) Uniformity of classification throughout a nonattainment area is thus a guiding principle and premise when an area is being reclassified.

The SCAQMD contends that the EPA has not explained why the rationale articulated by the EPA in the above reclassification rulemaking with respect to the areas of Indian country that were reclassified to “Extreme” does not continue to apply in evaluating the request by the Pechanga to establish a separate air quality planning area for the 1997 8-hour ozone standard.

Response to SCAQMD Comment #8: Since the EPA's 2010 final action to grant the State of California's request to reclassify the portion of the South Coast subject to State jurisdiction, and to reclassify Indian country (other than the Morongo and Pechanga Reservations) in the South Coast consistent with the State's request, the EPA has issued its Tribal Designations Policy and applied the principles of the policy in designating the Pechanga Reservation as a separate ozone nonattainment area for the 2008 ozone standard. In so doing, the EPA remains cognizant of the considerations set forth in that earlier rulemaking that caution against undue subdivision of larger air quality planning areas into smaller areas with different classifications. However, the EPA is also cognizant of the distinct jurisdictional principles associated with Indian reservations and the general absence of state regulatory jurisdiction in such areas. The Tribal Designation Policy was issued in part to apply these principles and in recognition of tribal sovereignty in the designations context.

More specifically, we continue to believe that boundaries of nonattainment areas should generally encompass both areas of direct sources of the pollution problem as well as nearby areas in the same airshed and continue to consider uniformity of classification as a guiding principle to avoid the potential hindrance by lower-classified areas to regional planning efforts to attain the standard. The Tribal Designation Policy retains these considerations in evaluating requests by tribes for separate areas as part of a multi-factor analysis. In this instance, we have concluded that establishment of the Pechanga Reservation as a separate area would not hinder regional efforts to attain or maintain the ozone NAAQS, and the benefit of retaining the Pechanga Reservation in two separate airsheds (South Coast and San Diego) is outweighed by other considerations, namely, the jurisdictional boundaries factor.

For the reasons set forth in the proposed rule and in response to comments above, the EPA is taking final action to establish the Pechanga Reservation as a separate air quality planning area for the 1997 8-hour ozone standard, to approve the Tribe's submittal of the Pechanga Ozone Maintenance Plan, and to approve the Tribe's request to redesignate the newly-designated Pechanga Reservation air quality planning area from nonattainment to attainment for the 1997 8-hour ozone standard.

More specifically, first, pursuant to CAA section 107(d)(3), the EPA is taking final action to revise the boundaries of the South Coast and San Diego County air quality planning areas for the 1997 8-hour ozone standard to designate the Pechanga Reservation as a separate nonattainment area for the 1997 8-hour ozone standard. We are doing so based on our conclusion that factors such as air quality data, meteorology, and topography do not definitively support inclusion of the reservation in either the South Coast or the San Diego County air quality planning areas, that emissions sources at the Pechanga Reservation contribute minimally to regional ozone concentrations, and that the jurisdictional boundaries factor should be given particular weight under these circumstances. As a result of our final action, the Pechanga Reservation air quality planning area for the 1997 8-hour ozone standard has the same boundaries as the Pechanga Reservation nonattainment area for the 2008 ozone standard and the 2012 annual PM2.5 standard.28

Second, pursuant to CAA section 110(k), the EPA is taking final action to approve the Pechanga Ozone Maintenance Plan, submitted by the Tribe on November 4, 2014, as the Tribe's TIP for maintaining the 1997 8-hour ozone standard within the Pechanga Reservation for ten years beyond redesignation, because it meets the requirements for maintenance plans under CAA section 175A.

Lastly, pursuant to CAA section 107(d)(3), and based in part on our approval of the Pechanga Ozone Maintenance Plan, the EPA is taking final action to grant a request from the Tribe to redesignate the newly-established Pechanga Reservation ozone air quality planning area to attainment for the 1997 8-hour ozone standard because the request meets the statutory requirements for redesignation in CAA section 107(d)(3)(E).

As a result of our final action, certain CAA requirements that had applied to the Pechanga Reservation by virtue of its inclusion in the South Coast “Extreme” ozone nonattainment area for the revoked 1-hour ozone standard no longer apply, nor do the requirements that had applied to the reservation by virtue of its designation as “Severe-17” for the 1997 8-hour ozone standard. The requirements that no longer apply include, among others, the NNSR major source threshold of 10 tpy for ozone precursor emissions in “Extreme” ozone nonattainment areas. New or modified stationary sources proposed at the Pechanga Reservation remain subject to major source nonattainment NNSR, however, by virtue of the reservation's classification as a “Moderate” ozone nonattainment area for the 2008 ozone standard. The NNSR major source threshold in “Moderate” ozone nonattainment areas is 100 tpy.

The EPA finds that there is good cause for approval of this TIP and redesignation to attainment to become effective immediately upon publication because a delayed effective date is unnecessary due to the nature of a redesignation to attainment which relieves the area from certain CAA requirements that would otherwise apply to it. The immediate effective date for this redesignation is authorized under both 5 U.S.C. 553(d)(1), which provides that rulemaking actions may become effective less than 30 days after publication if the rule “grants or recognizes an exemption or relieves a restriction” and section 553(d)(3), which allows an effective date less than 30 days after publication “as otherwise provided by the agency for good cause found and published with the rule.”

Under the CAA, redesignation of an Indian reservation air quality planning area to attainment and the accompanying approval of a maintenance plan under section 107(d)(3)(E) are actions that affect the status of a geographical area and do not impose any additional regulatory requirements on sources beyond those imposed by the TIP and applicable federal rules. Redesignation to attainment does not in and of itself create any new requirements, but rather results in the applicability of less stringent requirements contained in the CAA for areas that have been redesignated to attainment. Moreover, under circumstances where a tribe is determined as eligible for TAS for the purposes of section 110 with respect to a given TIP, the Administrator is required to approve a TIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing TIP submissions, the EPA's role is to approve tribal choices, provided that they meet the criteria of the Clean Air Act. Accordingly, these actions merely approve a tribal plan and redesignation request as meeting federal requirements and do not impose additional requirements beyond those imposed by tribal law. For these reasons, these actions:

• Are not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 2, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

Chapter I, title 40 of the Code of Federal Regulations is amended as follows:

Throughout this document “we,” “us,” or “our” refer to EPA. This section provides additional information by addressing the following:

EPA is taking direct final action to approve SIP revisions to replace specific EPA SIP-approved construction permits with modified permits in Muscatine County, Iowa. The modified permits are associated with PM2.5 emission points at Union Tank Car (UTLX) and Muscatine Power and Water (MPW). Prior versions of these permits were included in the 2006 24-hour PM2.5 NAAQS control strategy proposed in the Federal Register on August 11, 2014, (79 FR 71027) and published as a final rule on December 1, 2014, (79 FR 71025) with an effective date of December 31, 2014. Prior to publication of the final action, modifications to permits submitted with the control strategy were pending (under review by the state and undergoing public comment) for MPW and UTLX.

Permits for UTLX were modified to reflect current operating conditions, stack configurations, and revised PM2.5 emission limits. The permit conditions pertaining to compliance demonstrations and operating condition monitoring, recordkeeping and reporting were included in each modified permit. The Iowa Department of Natural Resources (IDNR) initiated the public comment period that ended on August 28, 2014, for the UTLX modified permits. No comments were received.

Permits for MPW were modified to include updated PM2.5 emission limitations associated with the rail unloading system. The permit conditions pertaining to compliance demonstrations and operating condition monitoring, recordkeeping and reporting were included in each modified permit. IDNR initiated the public comment period that ended on September 4, 2014, for the MPW modified permits. No comments were received.

The modified permits submission included a technical demonstration and an updated air dispersion modeling analysis. The modeling analysis, as well as the modified permits were reviewed by EPA and it was determined that the modifications continue to demonstrate emission reductions and attainment of the 2006 24-hour PM2.5 NAAQS in Muscatine, Iowa, and therefore, does not relax the SIP. Additional technical detail regarding permit modifications is included in the Technical Support Document included in the docket for this rulemaking.

This action will also make an administrative correction to a permit number.

The state submission has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submission also satisfied the completeness criteria of 40 CFR part 51, appendix V. In addition, as explained above and in more detail in the identified docket documents, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.

EPA is taking direct final action to approve SIP revisions to include modified permits for the Muscatine County, Iowa, area. The modified permits are for emission points at UTLX and MPW which were included in the 2006 24-hour PM2.5 NAAQS control strategy. The control strategy was proposed in the Federal Register on August 11, 2014, and published as a final rule on December 1, 2014, with the effective date of December 31, 2014.

This action also includes an administrative correction to the permit number for (44) Muscatine Power and Water (Permit NO. 95-A-373-P2).

We are publishing this direct final rule without a prior proposed rule because we view this as a noncontroversial amendment and anticipate no adverse comment because the revisions are largely administrative and consistent with Federal regulations. The detailed rationale for the approval is set forth in the technical support document that can be found in Docket ID No. EPA-R07-OAR-2015-0159. However, in the “Proposed Rules” section of today's Federal Register, we are publishing a separate document that will serve as the proposed rule to approve the SIP revision if adverse comments are received on this direct final rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information about commenting on this rule, see the ADDRESSES section of this document.

If EPA receives adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that this direct final rule will not take effect. We will address all public comments in any subsequent final rule based on the proposed rule.

In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of Iowa's EPA-Approved Iowa Source-Specific Orders/Permits, section 52.820 (d), described in the direct final amendments to 40 CFR part 52 set forth below. EPA has made, and will continue to make, these documents generally available electronically through www.regulations.gov and/or in hard copy at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).

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

• Is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011).

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

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

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

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

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

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

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

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

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

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register.

A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 2, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

For the reasons stated in the preamble, EPA amends 40 CFR part 52 as set forth below:

EPA is publishing this rule without a prior proposed rule because we view this as a noncontroversial action and we anticipate no adverse comment. This action clarifies our regulations related to the data sources used to establish the price for cellulosic waiver credits (CWC). EPA is also removing the CWC prices from our regulations so as to allow the prices to be established in a more expeditious manner. The CWC prices will instead be published on EPA's “Renewable Fuels: Regulations & Standards” Web site (http://www.epa.gov/otaq/fuels/renewablefuels/regulations.htm). The action also reinserts regulatory provisions in the renewable fuel standard (RFS) program regulations that were inadvertently overwritten by the Quality Assurance Program (QAP) final rule (79 FR 42078, July 18, 2014).

Clarifying the data sources used in calculating the CWC price will eliminate uncertainty regarding EPA's process in establishing the CWC prices, will enable stakeholders to better predict the annual CWC price before it is established, and will allow EPA to establish the CWC price in a more timely manner. This action does not change the formula used to establish the CWC price (listed in our regulations at 40 CFR 80.1456(d)).

In the “Proposed Rules” section of today's Federal Register, we are publishing a separate document that will serve as the proposed rule to make the changes described herein if adverse comments are received on this direct final rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information about commenting on this rule, see the ADDRESSES section of this document.

If EPA receives relevant adverse comment or a request for a public hearing, we will publish a timely withdrawal in the Federal Register informing the public of the portions of this direct final rule that will not take effect. We will address all public comments in a subsequent final rule based on the proposed rule.

Entities potentially affected by this direct final rule are those involved with the production, distribution, and sale of transportation fuels, including gasoline and diesel fuel or renewable fuels such as ethanol and biodiesel. Potentially regulated categories include:

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities that EPA is now aware could potentially be regulated by this action. Other types of entities not listed in the table could also be regulated. To determine whether your activities would be regulated by this action, you should carefully examine the applicability criteria in 40 CFR part 80. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed in FOR FURTHER INFORMATION CONTACT.

For any calendar year for which the projected volume of cellulosic biofuel production is less than the applicable volume of cellulosic biofuel set forth in CAA 211(o)(2)(B)(III), EPA must reduce the required volume of cellulosic biofuel for that year to the projected volume, and must provide obligated parties the opportunity to purchase cellulosic waiver credits (CWC). The price of these credits is determined using a formula specified in the CAA.1 The cellulosic waiver credit price is the greater of $0.25 or $3.00 minus the wholesale price of gasoline, where both the $0.25 and $3.00 are adjusted for inflation. In this action we are clarifying the data sources we use to calculate the inflation adjustments used in this formula. This will eliminate potential uncertainty regarding EPA's approach to establishing the CWC prices. We are not making any modifications to the formula used to calculate the CWC price.

Additionally, in order to provide more certainty to the market through timely publication of CWC prices, EPA is also amending the procedure it uses to announce CWC prices. To date, we have established the prices by rulemaking and published them in the Code of Federal Regulations. To allow more expeditious publication of these prices, EPA is removing references to CWC prices from the CFR. The prices will instead be posted by the Office of Transportation and Air Quality within the Office of Air and Radiation on EPA's “Renewable Fuels: Regulations & Standards” Web site (http://www.epa.gov/otaq/fuels/renewablefuels/regulations.htm).

We are also making minor amendments to the regulations to reinsert language applicable to biofuel producers using Arundo donax or Pennisetum purpureum as feedstock, which was inadvertently overwritten by the Quality Assurance Program (QAP) final rule (79 FR 42078, July 18, 2014), and to make minor conforming changes to the numbering of other regulatory provisions.

EPA is taking action to clarify sections of the regulations related to the CWC price calculation. These changes are consistent with the CWC price formula set forth in the statute, and more specifically, with the statutory direction to adjust certain terms in the formula for inflation. We believe the regulations as amended will more clearly articulate the data sources that EPA will use in calculating the CWC price for each year.

The regulations that outline the process used by EPA to calculate the CWC price are set forth in 40 CFR 80.1456(d). The regulations currently state that “the wholesale price of gasoline used in the CWC calculation will be calculated by averaging the most recent twelve monthly values for U.S. Total Gasoline Bulk Sales (Price) by Refiners as provided by the Energy Information Administration (EIA) that are available as of September 30 of the year preceding the compliance period.” 2 In practice, given the publication schedule for the referenced EIA publication, this means that EPA calculates the wholesale price of gasoline using data from the 12 months prior to July of the year preceding the compliance period (i.e., July 2011-June 2012 data for the 2013 CWC price). We are not making any modifications to this portion of the regulations.

The regulations also currently state that the inflation adjustment used in calculating the CWC price will be calculated at the time EPA sets the cellulosic biofuel standard.3 In an effort to provide certainty to the market in relation to the CWC price as soon as reasonably practical, EPA believes it would be preferable to announce the CWC price as soon as the relevant data on the wholesale price of gasoline is available. Therefore, we are amending these regulations to calculate the inflation adjustment using data from June of the year preceding the compliance period. We believe this is appropriate as it is the most recent month within the time period over which we calculate the average wholesale price of gasoline. We are also amending our regulations to eliminate the regulatory references to CWC prices. Instead we intend to announce the CWC price in a notice on our “Renewable Fuels: Regulations & Standards” Web site by November of the year preceding the compliance period. Consistent with previous CWC calculations, EPA will continue to base the inflation adjustment on the Consumer Price Index for All Urban Consumers (CPI-U): U.S. City Average, Unadjusted Index for All Items expenditure category as provided by the Bureau of Labor and Statistics. We are amending our regulations in this action to clarify that we are using the unadjusted price index, rather than the seasonally adjusted price index, to calculate the inflation adjustment. We believe this is appropriate as the unadjusted index most accurately reflects the prices consumers actually pay and do not change, whereas the seasonally adjusted indexes are subject to revision for up to five years after their release.4 We are also clarifying that we are using “US City Average” data, as opposed to data for geographic subsets of the country. This is appropriate in light of the nation-wide applicability of the RFS program. Both of these changes simply clarify EPA's current practice, and are designed to promote regulatory certainty and understanding by stakeholders.

We are also amending the section of our regulations where the CWC price for previous years is listed.5 EPA has included the prices for 2010, 2011, 2012, and 2013 CWCs in our regulations. Promulgating prices in our regulations, however, requires EPA to undertake a rulemaking, which we believe may unnecessarily delay the announcement of the CWC price. Furthermore, we believe the CWC price need not be established by rulemaking, for the following reasons. First, the formula and all data sources for the CWC price are specified in our regulations, so the actual price calculation is a procedural action that will not benefit from a notice and comment rulemaking. Second, CWCs are purchased from EPA, and EPA can ensure that the correct price is paid for them. Finally, the publication of the CWC price in the CFR is not necessary for informational purposes as EPA intends to promptly post the CWC prices on our Web site.

Therefore, in this action EPA is deleting the sections of our regulations containing the CWC prices for previous years and is instead including a statement in the regulations indicating that the CWC price for each year will be posted on EPA's “Renewable Fuels: Regulations & Standards” Web site (http://www.epa.gov/otaq/fuels/renewablefuels/regulations.htm). Adopting this approach will allow EPA to announce the CWC prices at the earliest opportunity. We believe this will benefit both cellulosic biofuel producers and obligated parties. EPA will post the CWC prices for 2013, 2014, and 2015 on our Web site following the effective date of this rule.

To illustrate the derivation of CWC prices pursuant to the statutory formula, and with the data sources specified in this direct final rule, we explain in this section the derivation of CWC prices for 2014 and 2015.6 EPA determined the average wholesale (refinery gate) price of gasoline using the monthly average prices for the 12 months prior to July of the year preceding each compliance period. In this calculation EPA uses the U.S. Total Gasoline Bulk Sales Price by Refiners (Dollars per Gallon) as reported by the U.S. Energy Information Administration (EIA). The data are shown below in Table 1 and Table 2 for the calculations for 2014 and 2015, respectively, and can be found at: (http://www.eia.gov/dnav/pet/hist/LeafHandler.ashx?n=PET&s=EMA_EPM0_PBR_NUS_DPG&f=M).

The average monthly price in dollars for the calculation of the 2014 CWC price is 2.823. The average monthly price in dollars for the calculation of the 2015 CWC price is 2.742.

The CAA requires that EPA adjust for inflation the comparison values of twenty-five cents ($0.25) and three dollars ($3.00) in the CWC price formula. EPA must compare the inflated twenty-five cent value with the amount the inflated three dollar value exceeds the average wholesale price of gasoline. EPA is required to use the greater of the two values as the price for the cellulosic biofuel waiver credits.

EPA evaluated inflation by using the Unadjusted Index values from the Consumer Price Index for All Urban Consumers (CPI-U): U.S. City Average, for the All Items expenditure category as provided by the Bureau of Labor and Statistics, for the months of January 2009 (the first comparable value after 2008) and June 2013 and June 2014, as discussed in Section II of this preamble. These unadjusted indexes are used to calculate an Inflation Factor for each year, as shown in Table 4 below. Finally, we compare $0.25 (inflation adjusted) to $3.00 (inflation adjusted) minus the wholesale price of gasoline for each year. The greater of these values is the price for the cellulosic waiver credits.

EPA notes that in this action we are not making a determination regarding whether CWCs will actually be offered. As required by statute, CWCs are only made available for sale if EPA lowers the required cellulosic biofuel volume requirement below the applicable volume set forth in the Act. EPA will decide whether or not it will lower the required cellulosic biofuel volumes in future rules establishing the 2014 and 2015 cellulosic biofuel percentage standards. At that time EPA will determine if CWCs will be sold. If so, they will be sold at the prices indicated above. However EPA notes that it has offered CWCs for every year since 2010, the first year for which a separate cellulosic biofuel standard was established. Given the anticipated shortfall in cellulosic biofuel production, as compared to statutory volumes, in these years it is probable that CWCs will be offered.

In the RFS RIN Quality Assurance Program final rule (79 FR 42078, July 18, 2014), we moved the previous 40 CFR 80.1426(f)(12) (regarding process heat produced from biogas) to 40 CFR 80.1426(f)(14) as we had proposed on February 21, 2013 (78 FR 12158). When we moved 40 CFR 80.1426(f)(12) to 40 CFR 80.1426(f)(14), however, we inadvertently overwrote the previous 40 CFR 80.1426(f)(14) (regarding renewable fuel produced from giant reed (Arundo donax) or napier grass (Pennisetum purpureum)) that had been finalized in a separate final rule which was published on July 11, 2013 (78 FR 41703). The new 40 CFR 80.1426(f)(12) finalized in the RFS RIN Quality Assurance Program final rule dealt with additional requirements for producers and importers when generating RINs. In today's action, we are amending the regulations to undo our inadvertent elimination of the regulatory provisions related to giant reed and napier grass. Specifically, we are: (1) Re-inserting the inadvertently eliminated language as 40 CFR 80.1426(f)(14) (See 78 FR 41714, July 11, 2013); (2) moving the current 40 CFR 80.1426(f)(14) (process heat produced from biogas) back to 40 CFR 80.1426(f)(12), where it existed prior to the RFS RIN Quality Assurance Program final rule (See 75 FR 79977, December 21, 2010); and (3) moving the current 40 CFR 80.1426(f)(12) to a new 40 CFR 80.1426(f)(17).

This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.

This action does not impose an information collection burden under the PRA. The changes made to the regulations as a result of this action impose no new or different reporting requirements on regulated parties.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, the impact of concern is any significant adverse economic impact on small entities. An agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, has no net burden or otherwise has a positive economic effect on the small entities subject to the rule. This action clarifies the data sources and methodology used by EPA to establish the CWC price, establishes these prices for 2014 and 2015, and reinserts inadvertently overwritten regulatory language. The impacts of the RFS2 program on small entities were already addressed in the RFS2 final rule promulgated on March 26, 2010 (75 FR 14670), and this rule will not impose any additional requirements on small entities beyond those already analyzed. We have therefore concluded that this action will have no net regulatory burden for all directly regulated small entities.

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action implements mandate(s) specifically and explicitly set forth in Clean Air Act section 211(o) without the exercise of any policy discretion by the EPA.

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

This action does not have tribal implications, as specified in Executive Order 13175. This rule will be implemented at the Federal level and potentially impacts gasoline, diesel, and renewable fuel producers, importers, distributors, and marketers. Tribal governments would be affected only to the extent they purchase and use regulated fuels. Thus, Executive Order 13175 does not apply to this action.

The EPA interprets E.O. 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not establish an environmental standard intended to mitigate health or safety risks and because it implements specific standards established by Congress in statutes (section 211(o) of the Clean Air Act).

This action is not subject to Executive Order 13211 because it is not a significant regulatory action under Executive Order 12866.

This rulemaking does not involve technical standards.

This rule is a technical correction and does not concern an environmental health or safety risk. Therefore, Executive Order 12898 does not apply.

This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Statutory authority for this action comes from section 211 of the Clean Air Act, 42 U.S.C. 7545.

For the reasons set forth in the preamble, title 40, chapter I of the Code of Federal Regulations is amended as set forth below.

I. General Information A. Does this action apply to me?

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of 40 CFR part 180 through the Government Publishing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2015-0125 in the subject line on the first page of your submission. All requests must be in writing, and must be received by the Hearing Clerk on or before June 2, 2015. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2015-0125, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

• Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001.

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.html.

EPA, on its own initiative, has previously issued final rules under FFDCA section 408, 21 U.S.C. 346a, establishing time-limited tolerances for fluridone, 1-methyl-3-phenyl-5-(3-(trifluoromethyl)phenyl)-4(1H)-pyridone, in or on cotton undelinted seed, and for diflubenzuron, N-[[(4-chlorophenyl)amino]carbonyl] -2,6-difluorobenzamide, in or on alfalfa forage and hay.

EPA established those tolerances because FFDCA section 408(l)(6) requires EPA to establish a time-limited tolerance or exemption from the requirement for a tolerance for pesticide chemical residues in food that will result from the use of a pesticide under an emergency exemption granted by EPA under FIFRA section 18. Such tolerances can be established without providing notice or time for public comment.

EPA received requests to extend the emergency use of these chemicals for this year's growing season. After having reviewed these submissions, EPA concurs that emergency conditions continue to exist. EPA assessed the potential risks presented by residues for each chemical. In doing so, EPA considered the safety standard in FFDCA section 408(b)(2), and decided that the necessary tolerance under FFDCA section 408(l)(6) would be consistent with the safety standard and with FIFRA section 18.

The data and other material relevant to these safety findings have been evaluated and discussed in the final rule originally published to support these uses. Based on that data and information considered, the Agency again concludes that these time-limited tolerances will continue to meet the requirements of FFDCA section 408(l)(6). Therefore, the time-limited tolerances are extended until December 31, 2017. EPA will publish a document in the Federal Register to remove the revoked tolerances from the Code of Federal Regulations (CFR). Although these tolerances will expire and are revoked on the date listed under FFDCA section 408(l)(5), residues of the pesticide not in excess of the amounts specified in the tolerance remaining in or on the commodity after that date will not be unlawful, provided the residue is present as a result of an application or use of a pesticide at a time and in a manner that was lawful under FIFRA, the tolerance was in place at the time of the application, and the residue does not exceed the level that was authorized by the tolerance. EPA will take action to revoke these tolerances earlier if any experience with, scientific data on, or other relevant information on this pesticide indicate that the residues are not safe.

Tolerances for the use of the following pesticide chemicals on specific commodities are being extended:

Fluridone. EPA has authorized under FIFRA section 18 the emergency use of fluridone on cotton for control of glyphosate-resistant Palmer amaranth in Arkansas, Georgia, Missouri, North Carolina, South Carolina and Tennessee. This regulation re-establishes a time-limited tolerance for residues of the herbicide fluridone, 1-methyl-3-phenyl-5-(3-(trifluoromethyl)phenyl)-4(1H)-pyridone, and its metabolites and degradates, determined as only the parent fluridone, in or on cotton, undelinted seed at 0.1 parts per million (ppm) for an additional three-year period. This tolerance will expire and is revoked on December 31, 2017. The final rule originally establishing the time-limited tolerance was published in the Federal Register of November 7, 2012 (77 FR 66715) (FRL-9366-8).

Diflubenzuron. EPA has authorized under FIFRA section 18 the use of diflubenzuron on alfalfa grown for hay for control of Mormon crickets (Anabrus simplex) and grasshoppers (Family Acrididae, various spp.) in Wyoming. This regulation re-establishes time-limited tolerances for residues of the insecticide diflubenzuron, N-[[(4-chlorophenyl)amino]carbonyl] -2,6-difluorobenzamide, and its metabolites, p-chlorophenylurea and p-chloroaniline, in or on alfalfa forage and alfalfa hay at 6.0 ppm for an additional three-year period. These tolerances will expire and are revoked on December 31, 2017. The final rule originally establishing the time-limited tolerances was published in the Federal Register of November 28, 2008 (73 FR 72352) (FRL-8388-9).

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

The Codex has not established MRLs for fluridone on cotton or diflubenzuron on alfalfa.

This action establishes tolerances under FFDCA sections 408(e) and 408(l)(6). The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established in accordance with FFDCA sections 408(e) and 408(l)(6), such as the tolerances in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.) do not apply.

This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq.).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, 40 CFR chapter I is amended as follows:

This is a summary of the Commission's Second Order on Reconsideration in WP Docket No. 07-100; FCC 15-28, adopted on March 9, 2015, and released March 11, 2015. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street SW., Washington, DC 20554. The full text may also be downloaded at: www.fcc.gov. Alternative formats are available to persons with disabilities by sending an email to [email protected] or by calling the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

1. A trunked radio system employs technology that can search two or more available channels and automatically assign a user an open channel. In the Fifth Report and Order, the Commission revised, clarified, and streamlined § 90.187 of its rules, which specifies the manner in which trunking may be accomplished in the 150-174 MHz and 421-512 MHz private land mobile radio bands. PSCC seeks reconsideration with respect to two of those rule changes.

2. Section 90.187(d)(3). As noted in the Fifth Report and Order, § 90.187 requires that a trunked system monitor the frequencies and employ equipment that prevents transmission on a frequency if a signal from another system is present on it, with certain exceptions. One of these exceptions is if the licensee obtains the written consent of all “affected licensees.” Whether an incumbent is an affected licensee depends on both the spectral proximity of the existing and proposed frequencies, and the physical proximity of the existing and proposed facilities. In the Fifth Report and Order, the Commission modified § 90.187 to require that the contour analysis used to determine physical proximity be performed by an applicant for a new centralized trunked system to demonstrate both that (1) the proposed system's interference contour will not overlap any spectrally proximate incumbent system's service contour; and (2) its proposed service contour will not be overlapped by the interference contour of any incumbent system (a “reverse” contour analysis). The Commission adopted the reverse contour requirement because its benefits—to prevent the licensing of stations that would appear to have little function other than to enable the applicant to block the expansion of viable incumbent systems—outweighed the limited additional burden on frequency coordinators of performing a two-way analysis. It noted that applicants with legitimate reasons for seeking authorization for service contours overlapped by incumbents' interference contours could seek case-by-case waivers.

3. PSCC states that there are situations in which it is appropriate to license low-power Public Safety stations within the interference contours of incumbent stations in order to fill a specific communications need, such as providing communications capacity at a prison or courthouse, and that such stations have no effect on incumbent licensees. PSCC believes that the coordination of such stations should be permitted based on the expertise of the Public Safety Pool frequency coordinators rather than requiring licensees to utilize the slower and more burdensome case-by-case waiver process. Further, PSCC asserts that while “a practice similar to `greenmail' ” may occur on Industrial/Business Pool channels, which the reverse contour analysis might help to prevent, the issue does not arise on Public Safety Pool channels.

4. We agree with PSCC that the reverse contour requirement is not necessary for the Public Safety Pool channels, and should apply only to Industrial/Business Pool channels. No party has opposed PSCC's request, and we find the risk of such potential “greenmail” activity in connection with public safety facilities to be unlikely and certainly outweighed by the cost of pursuing case-by-case waivers. Accordingly, we are amending the rules to eliminate the “affected licensees” consent requirement for Public Safety Pool applicants for stations with a proposed service contour overlapped by an incumbent system's interference contour. Such Public Safety Pool applicants will be permitted to prosecute their applications, which require coordination by a Public Safety Pool frequency coordinator, without obtaining the consent of “affected licensees” unless their proposed interference contour overlaps any spectrally proximate incumbent licensee's service contour. We amend § 90.187(d)(3) to make clear that when a public safety applicant files an application in which its service contour is overlapped by the interference contour of an incumbent station, the applicant must accept any resultant interference.

5. Section 90.187(d)(1)(B). Formerly, § 90.187 was not entirely clear about how to treat mobile stations for the foregoing contour analysis. The Commission amended the rule in the Fifth Report and Order to provide that, for purposes of the contour analysis to determine whether a station is an affected licensee, a mobile-only system's authorized operating area will be used as both its service contour and its interference contour. The Commission concluded that using the service area boundary for both the protected contour and the interference contour would allow establishment of new facilities while still providing an appropriate level of protection to the mobile operations.

6. PSCC concurs with the Commission's decision to address the protection of mobile stations not associated with a base station by making the mobile-only authorized operating area represent both the interference and service contours. It notes, however, that the Commission did not adopt any provision regarding protection of mobile units that are associated with a base station, and suggests that associated mobile units be treated analogously to unassociated mobile units by using the associated base station's service contour as both the associated mobile unit's service contour and interference contour.

7. We agree that this omission should be addressed with respect to the 150-174 MHz band, where the base and mobile frequencies generally are not paired. As the Commission concluded with respect to mobile units not associated with a base station, using the service area boundary for 150-174 MHz mobile units that are associated with a base station for both the protected contour and the interference contour will allow establishment of new facilities while still providing an appropriate level of protection to incumbent operations. We amend § 90.187(d)(1)(B) accordingly.

8. This document does not contain proposed information collection(s) subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified “information collection burden for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

9. As required by the Regulatory Flexibility Act (RFA), a Final Regulatory Flexibility Analysis (FRFA) was incorporated in the Fifth Report and Order. In view of the fact that we have adopted further rule amendments in the Second Order on Reconsideration, we have included this Supplemental Final Regulatory Flexibility Certification. This Certification conforms to the RFA. See 5 U.S.C. 604.

10. The Regulatory Flexibility Act of 1980, as amended (RFA) requires that a regulatory flexibility analysis be prepared for rulemaking proceedings, unless the agency certifies that “the rule will not have a significant economic impact on a substantial number of small entities.” See 5 U.S.C. 605(b). The RFA generally defines “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” See 5 U.S.C. 601(6). In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. See 5 U.S.C. 601(3). A small business concern is one which (1) is independently owned and operated, (2) is not dominant in its field of operation, and (3) satisfies any additional criteria established by the Small Business Administration (SBA). See Small Business Act, 5 U.S.C. 632 (1996). The FRFA incorporated in the Fifth Report and Order described and estimated the number of small entity licensees and regulatees that may be affected by the rules changes adopted therein, described the projected reporting, recordkeeping, and other compliance requirements associated therewith, identified the steps taken to minimize significant economic impact on small entities and significant alternatives considered in connection therewith, and identified no federal rules that may duplicate, overlap, or conflict therewith. That FRFA is unchanged by this Second Order on Reconsideration except as described below.

11. The Second Order on Reconsideration makes technical modifications to our rule regarding the contour analysis for determining whether to permit a new centralized trunked station. These rule changes are not expected to have any significant cumulative effect on frequency coordination costs. Therefore, we certify that the requirements of the Second Order on Reconsideration will not have a significant economic impact on a substantial number of small entities.

12. The Commission will send a copy of the Second Order on Reconsideration, including a copy of this final certification, in a report to Congress pursuant to the Congressional Review Act, see U.S.C. 801(a)(1)(A). In addition, the Second Order on Reconsideration and this certification will be sent to the Chief Counsel for Advocacy of the Small Business Administration. A copy of this Second Order on Reconsideration and this certification (or summaries thereof) will also be published in the Federal Register. See 5 U.S.C. 604(b).

13. Accordingly, it is ordered pursuant to sections 4(i), 303(r), and 405 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(r), 405, and § 1.429 of the Commission's rules, 47 CFR 1.429, that the Petition for Reconsideration of the Fifth Report and Order filed by the Public Safety Communications Council on June 12, 2013, is granted to the extent set forth herein.

14. It is further ordered that part 90 of the Commission's rules is amended, effective May 4, 2015.

For the reasons discussed, the Federal Communications Commission amends 47 CFR part 90 as follows:

The Supplementary Information section of this rule is organized as follows.

This final rule adjusts the amount of FMCSA's civil penalties to account for inflation as directed by the Adjustment Act, as amended by the DCIA. The specific inflation adjustment methodology is described below. This final rule also eliminates existing inconsistencies between regulatory language in Appendices A and B of 49 U.S.C. part 386 and other parts of the FMCSRs by removing the penalty amounts from the regulatory language and listing all penalty amounts in these appendices only. Finally, this rulemaking addresses changes to the hazardous material civil penalties violations which were mandated by MAP-21.

The changes imposed by this final rule upon the civil penalty amounts alter only the magnitude of transfer payments; transfer payments by definition are not considered in the monetization of societal costs and benefits of rulemakings. Congress has stated in the Adjustment Act, section 2, that increasing penalties over time will deter violations. Therefore, with this deterrence, FMCSA infers that there may be some safety benefits that occur due to this final rule. The deterrence effect of increasing penalties, which Congress has recognized, cannot be reliably quantified into safety benefits, however.

This rulemaking is based primarily on three statutes.

To preserve the remedial effect of civil penalties and foster compliance with applicable regulations, the Adjustment Act (Pub. L. 101-410, 104 Stat. 890, October 5, 1990), as amended by the DCIA, (Pub. L. 104-134, April 26, 1996, 110 Stat. 1321-1373; 28 U.S.C. 2461), requires Federal agencies to regularly adjust certain civil penalties for inflation. The statute requires each agency to make an initial inflationary adjustment for all applicable civil penalties and to make further adjustments to these penalty amounts. The detailed methodology required by statute is discussed in the Background section below.

This rule's authority is partly based on MAP-21 (Pub. L. 112-141, 126 Stat. 405, July 6, 2012). Specifically, the authority comes from Title III of MAP-21, the Hazardous Materials Transportation Safety Improvement Act of 2012, including section 33010, which amended 49 U.S.C. 5123, a civil penalty provision, effective on October 1, 2012.

Previously, 49 U.S.C. 5123 provided for penalties of not less than $250 and not more than $50,000 for violations of regulations related to the transportation of hazardous materials, and not less than $450 and not more than $50,000 for violations of regulations related to hazardous materials training. For violations that resulted in death, serious illness, or severe injury to any person or substantial destruction of property, section 5123 provided for penalties up to $100,000. MAP-21 amended section 5123 to remove the minimum penalty for violations related to the transportation of hazardous materials, provide for penalties up to $75,000 for violations related to the transportation of hazardous materials or training, and $175,000 in the event of death, serious illness, severe injury or substantial destruction of property. To implement these changes, this final rule amends 49 CFR part 386, Appendix B (e)(1-5).

Other MAP-21 provisions that are the basis for changes to additional civil penalties in this final rule include: Section 32108, Reporting and recordkeeping related to operating authority registration (49 U.S.C. 14901(a)); section 32108, Passenger carrier operating without registration (49 U.S.C. 14901(a)); section 32108, Property carrier operating without registration (49 U.S.C. 14901(a)); section 32108, a motor carrier or broker transporting hazardous waste without registration (49 U.S.C. 14901(b)); section 32110, Disobedience to a subpoena (49 U.S.C. 525); section 32503, Operating in violation of an unsatisfactory/unfit out of service order (49 U.S.C. 521(b)(2)(F)); section 32503, Operating in violation of an imminent hazard order (49 U.S.C. 521(b)(2)(F)); section 32505, Strikes “knowingly and willfully” from 49 U.S.C. 524 (evasion of safety-related regulations); section 32505, Evasion of commercial regulations (49 U.S.C. 14906);); and section 32919, Unlawful brokering (49 U.S.C. 14916).

Two provisions under the Safe Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (Pub. L. 109-59, 119 Stat. 1144, Aug. 10, 2005), (SAFETEA-LU) provides authority to increase civil penalties. First, section 4102 (b), codified at 49 U.S.C. 31310 (i)(2)(C), addresses an employer of a CDL-holder who knowingly allows, requires, permits, or authorizes an employee to operate a CMV when the CDL-holder is subject to an out-of-service order. Second, section 4209 (d)(3), codified at 49 U.S.C. 14901 (d)(3), addresses providing household good transportation without a registration.

Generally, agencies may promulgate final rules only after issuing a notice of proposed rulemaking and providing an opportunity for public comment under procedures required by the Administrative Procedure Act (5 U.S.C. 551-706) (APA), as provided in 5 U.S.C. 553(b) and (c). The APA provides a good cause exception from these requirements when notice and public comment procedures are “impracticable, unnecessary, or contrary to the public interest” (5 U.S.C. 553(b)(3)(B)). However, the good cause exception requires an agency finding that includes a brief statement of reasons in the rules issued to dispense with notice and comment procedures.

In this instance, FMCSA finds that notice and comment is unnecessary prior to adoption of this final rule because adjustments to civil penalties are statutorily mandated by Congress and the Agency's final rule is a nondiscretionary, ministerial act to implement these statutory obligations. The amendments made in this final rule merely adjust penalty provisions for inflation and do not impose new discretionary requirements on the public. For these reasons, the FMCSA finds good cause that notice and public comment in accordance with the APA on this final rule is unnecessary. For the same reasons the agency finds notice and comment procedures unnecessary under 49 U.S.C. 553(b)(3)(B), the agency also finds good cause under 49 U.S.C. 553(d) that this rule be effective on the date of publication in the Federal Register.

Finally, 49 U.S.C. 31138 (c)(4) and 49 U.S.C. 31139 (c) are authorities relied upon to address technical amendments to part 387 regarding factors FMCSA must take into account in assessing penalties, which includes the ability of parties to pay violations. These changes to part 387 capture the precise statutory language of those authorities.

This final rule eliminates existing inconsistencies between regulatory language in Appendices A and B of part 386 and other parts of the FMCSRs by removing the penalty amounts from the regulatory language and listing all penalty amounts in these appendices only. Specifically, for ease of reference, the penalty amounts contained in sections 383.53 (b) and (c), section 385.111(h), section 387.17, and section 387.41 are removed and now referenced only in Appendix B.

Under the DCIA, the inflation adjustment for each civil penalty is determined by increasing the maximum civil penalty amount per violation by applying a cost-of-living adjustment. The DCIA specifies the cost-of-living adjustment as the percentage by which the Consumer Price Index (CPI) “for the month of June of the calendar year preceding the adjustment exceeds the CPI for the month of June of the year in which the amount of such civil penalty was last set or adjusted pursuant to law” ((section 5(b))). Any calculated increase under this adjustment is subject to a specific rounding formula set forth in the DCIA as follows:

(1) Multiple of $10 in the case of penalties less than or equal to $100;

(2) multiple of $100 in the case of penalties greater than $100 but less than or equal to $1,000;

(3) multiple of $1,000 in the case of penalties greater than $1,000 but less than or equal to $10,000;

(4) multiple of $5,000 in the case of penalties greater than $10,000 but less than or equal to $100,000;

(5) multiple of $10,000 in the case of penalties greater than $100,000 but less than or equal to $200,000; and

(6) multiple of $25,000 in the case of penalties greater than $200,000.

For example, under Appendix A of 49 CFR part 386, part IV, paragraph (e), failure to return a written certification of correction as required by an out-of-service order, is subject to a civil penalty. The penalty was adjusted for inflation on September 28, 2007 (72 FR 55100), resulting in a maximum penalty of $750 per violation. The CPI was approximately 238 in June 2014, and 208 in June 7, 2007 (see U.S. Bureau of Labor Statistics at http://www.bls.gov/cpi/). Thus, the inflation factor is 238/208 or 1.14.1 The new penalty amount after the increase is the result of multiplying $750 × 1.14 = $855. Under the statute, however, the inflation adjustment increase is to be rounded to the nearest multiple of $100 in the case of penalties greater than $100 but less than or equal to $1,000. In this example, the amount of the increase in the daily maximum penalty was $105, and when rounded to the nearest multiple of $100 equals $100, so the new daily maximum penalty is $850. Therefore, Appendix A, 49 CFR part 386, part IV, paragraph (e) is revised to provide an adjusted maximum penalty of $850 ($750 + $100) per violation.

The 1.14 inflation factor is used to adjust penalties that were adjusted in 2007, which included penalties: Under the Transportation Equity Act for the 21st Century (Pub. L. 105-178, 112 Stat. 107); established in the ICC Termination Act of 1995 (Pub. L. 104-88, 109 Stat. 809); and enacted in the Motor Carrier Safety Improvement Act of 1999 (Pub. L. 106-159, 113 Stat. 1748 (Dec. 9, 1999)).

Some penalties were adjusted in 2003 but not adjusted in 2007. The adjustment factor used to update those amounts in this final rule uses the June 2003 CPI value of 184: 238/184 = 1.30. For example, the penalty for operating a CMV when the driver was placed out of service (49 CFR part 386, Appendix B, paragraph (b)) was $3,750 per violation. This penalty has not been adjusted since 2003, so it will be increased to $4,750, applying the following calculation: The increment of $1,125 ($3,750 × 1.30 = $4,875, less the original penalty of $3,750) will be rounded to the nearest thousand and added to the original value of the penalty. If the penalty is less than half the rounding amount, no inflation factor will be added. See the table, Inflation Adjustments for part 386, in the Section-by-Section discussion, directly below.

However, the statute requires that any penalty being adjusted for the first time not exceed 10% of such penalty. Each of these are marked with an asterisk in the following table. For example, the penalty for an employer of a CDL-holder who knowingly allows, requires, permits or authorizes that CDL-holder to operate a CMV in violation of a Federal, State, or local law or regulation (part 386, Appendix B (b)(3)) is $10,000 for each offense. The adjustment would be $3,000 based on the following calculation: $10,000 × 1.30= $13,000, or an increase of $3,000. But since its first adjustment would be greater than 10%, the actual adjustment is capped at $1,000, which means the inflated penalty amount is now $11,000 ($10,000 + $1,000).

MAP-21 revised several civil penalties under the Federal Hazardous Materials Regulations (49 CFR parts 171-180), which have been promulgated by final rule in 78 FR 60226, (October 1, 2013). The FMCSA is not adjusting these penalties for inflation or any penalties established in 2011 and 2012, because, given their comparatively recent establishment, the inflationary adjustments would have, at most, a minimal impact on these penalties. However, the agency will increase such penalties in future rulemakings as appropriate.

As noted in the regulatory text (part 386 appendices A and B) in today's rule, the adjusted civil penalties identified in the appendices supersede, where a discrepancy exists, the corresponding civil penalty amounts identified in title 49, United States Code.

The penalty amounts contained in Sections 383.53 (b) and (c) are removed and now referenced in Appendix B (b)(1), (b)(2), and (b)(3).

The penalty amount contained in Section 385.111(h) is removed and now referenced in Appendix B (f)(1).

Part 386 Appendix A has a new introduction to mirror the language at the beginning of Appendix B. Below is the table with the current civil penalty amounts in the appendices of part 386 and increases applied: