Federal Register Vol. 81, No.116,

The Asian longhorned beetle (ALB, Anoplophora glabripennis), an insect native to China, Japan, Korea, and the Isle of Hainan, is a destructive pest of hardwood trees. It attacks many healthy hardwood trees, including maple, horse chestnut, birch, poplar, willow, and elm. In addition, nursery stock, logs, green lumber, firewood, stumps, roots, branches, and wood debris of half an inch or more in diameter are subject to infestation. The beetle bores into the heartwood of a host tree, eventually killing the tree. Immature beetles bore into tree trunks and branches, causing heavy sap flow from wounds and sawdust accumulation at tree bases. They feed on, and overwinter in, the interiors of trees. Adult beetles emerge in the spring and summer months from round holes approximately three-eighths of an inch in diameter that they bore through branches and trunks of trees. After emerging, adult beetles feed for 2 to 3 days and then mate. Adult females then lay eggs in oviposition sites that they make on the branches of trees. A new generation of ALB is produced each year. If this pest moves into the hardwood forests of the United States, the nursery, maple syrup, and forest product industries could experience severe economic losses. In addition, urban and forest ALB infestations will result in environmental damage, aesthetic deterioration, and a reduction of public enjoyment of recreational spaces.

The regulations in 7 CFR 301.51-1 through 301.51-9 restrict the interstate movement of regulated articles from quarantined areas to prevent the artificial spread of ALB to noninfested areas of the United States.

Section 301.51-2 of the regulations designates certain items as regulated articles. Regulated articles may not be moved interstate from quarantined areas except in accordance with the conditions specified in §§ 301.51-4 through 301.51-9 of the regulations. Regulated articles listed in § 301.51-2(a) have included green lumber and other material living, dead, cut, or fallen, inclusive of nursery stock, logs, stumps, roots, branches, and debris of half an inch or more in diameter of the following genera: Acer (maple), Aesculus (horse chestnut), Albizia (mimosa), Betula (birch), Celtis (hackberry), Cercidiphyllum (katsura), Fraxinus (ash), Koelreuteria (golden rain tree), Platanus (sycamore), Populus (poplar), Salix (willow), Sorbus (mountain ash), and Ulmus (elm). This list of genera is based on scientific literature provided by government officials, scientists, and government and individual researchers from China as well as survey information collected in the United States since discovery of the pest.

On April 27, 2015, the Animal and Plant Health Inspection Service (APHIS) issued a Federal Order 1 effective on that date to immediately remove plants of the genus Celtis (hackberry) as regulated articles for ALB from the host list. This action responds to research conducted by APHIS indicating that ALB does not complete its life cycle in hackberry trees. Therefore, such trees no longer need to be inspected or considered for treatment, and hackberry can now be moved from areas under quarantine for ALB.

Immediate action is warranted to relieve restrictions that are no longer necessary because we have determined that hackberry is not a host for ALB. Under these circumstances, the Administrator has determined that prior notice and opportunity for public comment are contrary to the public interest and that there is good cause under 5 U.S.C. 553 for making this action effective less than 30 days after publication in the Federal Register.

We will consider comments we receive during the comment period for this interim rule (see DATES above). After the comment period closes, we will publish another document in the Federal Register. The document will include a discussion of any comments we receive and any amendments we are making to the rule.

This interim rule is subject to Executive Order 12866. However, for this action, the Office of Management and Budget has waived its review under Executive Order 12866.

In accordance with the Regulatory Flexibility Act, we have analyzed the potential economic effects of this action on small entities.

The hackberry is a widespread small- to medium-sized fast-growing tree. It is widely distributed in the eastern United States from the southern New England States through central New York west to North and South Dakota. The range extends south from western Nebraska to northwestern Texas, then east to Arkansas, Tennessee, and North Carolina, with scattered occurrences in Mississippi, Alabama, and Georgia.

The hackberry is not valuable as a timber tree. Hackberry wood is heavy, soft, light-yellow, and coarse-grained. It rots easily and therefore is generally undesirable commercially. Occasionally, it is utilized to produce fencing, crates and boxes, or inexpensive furniture, but more commonly it is used as firewood.2 Under industry standards for business size established by the Small Business Administration, most firewood retailers and wholesalers are considered to be small entities.

Removal of hackberry from the ALB host list will mean that interstate movement of the wood from ALB-quarantined areas will not require a certificate or limited permit issued by an inspector or by a person operating under a compliance agreement. Firewood wholesalers and retailers and other businesses that move hackberry wood from ALB-quarantined areas will benefit from the interim rule, but the economic effects will be modest.

Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.

This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 2 CFR chapter IV.)

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

This rule contains no new information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

Accordingly, we are amending 7 CFR part 301 as follows:

This final rule is issued under Marketing Agreement and Order No. 930, both as amended (7 CFR part 930), regulating the handling of tart cherries produced in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington and Wisconsin, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Orders 12866, 13563, and 13175.

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the order provisions now in effect, free and restricted percentages may be established for tart cherries handled during the crop year. This final rule establishes free and restricted percentages for tart cherries for the 2015-16 crop year, beginning July 1, 2015, through June 30, 2016.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

This final rule establishes free and restricted percentages for the 2015-16 crop year. This rule establishes the proportion of tart cherries from the 2015 crop which may be handled in commercial outlets at 80 percent free and 20 percent restricted. In addition, this rule increases the carry-out volume of fruit to 55 million pounds for calculation purposes for this season. This action should stabilize marketing conditions by adjusting supply to meet market demand and help improve grower returns. The carry-out and the final percentages were recommended by the Board at a meeting on September 10, 2015.

Section 930.51(a) of the order provides authority to regulate volume by designating free and restricted percentages for any tart cherries acquired by handlers in a given crop year. Section 930.50 prescribes procedures for computing an optimum supply based on sales history and for calculating these free and restricted percentages. Free percentage volume may be shipped to any market, while restricted percentage volume must be held by handlers in a primary or secondary reserve, or be diverted or used for exempt purposes as prescribed in §§ 930.159 and 930.162 of the regulations. Exempt purposes include, in part, the development of new products, sales into new markets, the development of export markets, and charitable contributions. For cherries held in reserve, handlers would be responsible for storage and would retain title of the tart cherries.

Under § 930.52, only those districts with an annual average production of at least six million pounds are subject to regulation, and any district producing a crop which is less than 50 percent of its annual average is exempt. The regulated districts for the 2015-16 crop year are: District 1—Northern Michigan; District 2—Central Michigan; District 3—Southern Michigan; District 4—New York; District 7—Utah; District 8—Washington; and District 9—Wisconsin. Districts 5 and 6 (Oregon and Pennsylvania, respectively) are not regulated for the 2015-16 season.

Demand for tart cherries and tart cherry products tends to be relatively stable from year to year. Conversely, annual tart cherry production can vary greatly. In addition, tart cherries are processed and can be stored and carried over from crop year to crop year, further impacting supply. As a result, supply and demand for tart cherries are rarely in balance.

Because demand for tart cherries is inelastic, total sales volume is not very responsive to changes in price. However, prices are very sensitive to changes in supply. As such, an oversupply of cherries would have a sharp negative effect on prices, driving down grower returns. The Board, aware of this economic relationship, focuses on using the volume control provisions in the order to balance supply and demand to stabilize industry returns.

Pursuant to § 930.50 of the order, the Board meets on or about July 1 to review sales data, inventory data, current crop forecasts, and market conditions for the upcoming season and, if necessary, to recommend preliminary free and restricted percentages if anticipated supply would exceed demand. After harvest is complete, but no later than September 15, the Board meets again to update their calculations using actual production data, consider any necessary adjustments to the preliminary percentages, and determine if final free and restricted percentages should be recommended to the Secretary.

The Board uses sales history, inventory, and production data to determine whether there is a surplus and, if so, how much volume should be restricted to maintain optimum supply. The optimum supply represents the desirable volume of tart cherries that should be available for sale in the coming crop year. Optimum supply is defined as average free sales for the prior three years plus desirable carry-out inventory. Desirable carry-out is the amount of fruit needed by the industry to be carried into the succeeding crop year to meet market demand until the new crop is available. Desirable carry-out is set by the Board after considering market circumstances and needs. Section 930.50(a) specifies that desirable carry-out can range from zero to a maximum of 20 million pounds but also authorizes the Board to establish an alternative carry-out figure with the approval of the Secretary.

In addition, USDA's “Guidelines for Fruit, Vegetable, and Specialty Crop Marketing Orders” (http://www.ams.usda.gov/publications/content/1982-guidelines-fruit-vegetable-marketing-orders) specify that 110 percent of recent years' sales should be made available to primary markets each season before recommendations for volume regulation are approved. This requirement is codified in § 930.50(g) of the order, which specifies that in years when restricted percentages are established, the Board shall make available tonnage equivalent to an additional 10 percent of the average sales of the prior three years for market expansion (market growth factor).

After the Board determines optimum supply, desirable carry-out, and the market growth factor, it must examine the current year's available volume to determine whether there is an oversupply situation. Available volume includes carry-in inventory (any inventory available at the beginning of the season) along with that season's production. If production is greater than the optimum supply minus carry-in, the difference is considered surplus. This surplus tonnage is divided by the sum of production in the regulated districts to reach a restricted percentage. This percentage must be held in reserve or used for approved diversion activities, such as exports.

The Board met on June 25, 2015, and computed an optimum supply of 208 million pounds for the 2015-16 crop year using the average of free sales for the three previous seasons and a desirable carry-out of 20 million pounds. The Board then subtracted the estimated carry-in of 104 million pounds from the optimum supply to calculate the production needed from the 2015-16 crop to meet optimum supply. This number, 104 million pounds, was subtracted from the Board's estimated 2015-16 production of 233 million pounds to calculate a surplus of 129 million pounds of tart cherries. The surplus minus the market growth factor was then divided by the expected production in the regulated districts (228 million pounds) to reach a preliminary restricted percentage of 48 percent for the 2015-16 crop year.

In discussing the calculations, industry participants commented that a carry-out of 20 million pounds would not meet their needs at the end of the season before the new crop is available. To address that concern, the Board recommended increasing the desirable carry-out to 55 million pounds for the 2015-16 season. This change increased the optimum supply to 243 million pounds, reducing the surplus to 94 million pounds.

The Board also discussed whether the substantial reduction of supply in 2012 due to weather was still a factor that needed to be considered in determining optimum supply. Because of the crop loss, sales in 2012-13 reached only 123 million pounds, nearly 100 million pounds less than 2013-14 sales. In the previous two seasons when considering volume regulation, the Board recommended economic adjustments to account for the substantial decline in 2012. The Board again determined that the market required additional tonnage to continue recovering sales and voted to make an economic adjustment of 43 million pounds to increase the available supply of tart cherries. The Board also complied with the market growth factor requirement by adding 19 million pounds (188 million pounds times 10 percent, rounded) to the free supply.

The economic adjustment and market growth factor further reduced the preliminary surplus to 32 million pounds. After these adjustments, the preliminary restricted percentage was recalculated as 14 percent (32 million pounds divided by 228 million pounds).

The Board met again on September 10, 2015, to consider establishing final volume regulation percentages for the 2015-16 season. The final percentages are based on the Board's reported production figures and the supply and demand information available in September. The total production for the 2015-16 season was 249 million pounds, 25 million pounds above the Board's June estimate. In addition, growers diverted 1 million pounds in the orchard, leaving 248 million pounds available to market. Using the actual production numbers, and accounting for the recommended increase in desirable carry-out and economic adjustment, as well as the market growth factor, the restricted percentage was recalculated.

The Board subtracted the carry-in figure used in June of 104 million pounds from the optimum supply of 243 million pounds to determine 139 million pounds of 2015-16 production would be necessary to reach optimum supply. The Board subtracted the 139 million pounds from the actual production of 248 million pounds, resulting in a surplus of 109 million pounds of tart cherries. The surplus was then reduced by subtracting the economic adjustment of 43 million pounds and the market growth factor of 19 million pounds, resulting in an adjusted surplus of 47 million pounds. The Board then divided this final surplus by the actual production in the regulated districts (240 million pounds) to calculate a restricted percentage of 20 percent with a corresponding free percentage of 80 percent for the 2015-16 crop year, as outlined in the following table:

The primary purpose of setting restricted percentages is to attempt to bring supply and demand into balance. If the primary market is oversupplied with cherries, grower prices decline substantially. Restricted percentages have benefited grower returns and helped stabilize the market as compared to those seasons prior to the implementation of the order. The Board believes the available information indicates that a restricted percentage should be established for the 2015-16 crop year to avoid oversupplying the market with tart cherries. Consequently, based on its discussion of this issue and the result of the above calculations, the Board recommended final percentages of 80 percent free and 20 percent restricted by a vote of 16 in favor and 1 against.

During the discussion of the proposed restriction, some members expressed concern regarding competition from imported tart cherry juice concentrate. In particular, some were concerned that the additional volume from imports is not accounted for in the optimum supply formula, thus not capturing overall supply and demand. An economist from Michigan State University is working with the Board to assemble information on tart cherry imports. The Board also voted to establish an import committee to review the data on imports once it is available. Another member asserted that any restriction would adversely impact growers' ability to sell all of their fruit. One member also said that a 20 percent restriction seemed high given the moderate production in 2015.

One member noted that setting the restriction at 20 percent would aid in maintaining price stability, with another member reminding the Board of the importance of the order and volume control in avoiding oversupplying the market with tart cherries. One other member said it was also important to maintain a reserve in case of another crop disaster. Other members stated the demand adjustment and the recommended increased carry-out would put sufficient fruit on the market in the coming year.

After reviewing the available data and considering the concerns expressed, the Board determined that a 20 percent restriction with a carry-out volume of 55 million pounds meets sales needs and establishes some reserves without oversupplying the market. Thus, the Board recommended establishing final percentages of 80 percent free and 20 percent restricted. The Board could meet and recommend the release of additional volume during the crop year if conditions so warranted.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

There are approximately 600 producers of tart cherries in the regulated area and approximately 40 handlers of tart cherries who are subject to regulation under the order. Small agricultural producers are defined by the Small Business Administration (SBA) as those having annual receipts of less than $750,000, and small agricultural service firms have been defined as those whose annual receipts are less than $7,500,000 (13 CFR 121.201).

According to the National Agricultural Statistics Service (NASS) and Board data, annual 2014-2015 tart cherry crop value was $106.745 million. Dividing this figure by the number of producers (600) yields an average annual receipts per producer estimate of about $178,000. Since this is well below $750,000, it can be concluded that most tart cherry producers are small producers, according to the SBA criteria. In 2014, The Food Institute estimated an f.o.b. price of $0.96 per pound for frozen tart cherries, which make up the majority of processed tart cherries. Multiplying tart cherry utilized production of 300.3 million pounds by $0.96 yields a handler-level annual receipts estimate of $288.3 million. Dividing this figure by the number of handlers (40) yields an average annual receipts per handler estimate of about $7.2 million, which is below the SBA threshold for small agricultural service firms. Assuming a normal distribution, the majority of producers and handlers of tart cherries may be classified as small entities.

The tart cherry industry in the United States is characterized by wide annual fluctuations in production. According to NASS, tart cherry production in 2012 was 85 million pounds, 294 million pounds in 2013, and in 2014, production was 304 million pounds. Because of these fluctuations, the supply and demand for tart cherries are rarely in balance.

Demand for tart cherries is inelastic, meaning changes in price have a minimal effect on total sales volume as manufacturers do not easily substitute other fruits for tart cherry products. However, prices are very sensitive to changes in supply. Grower prices vary widely in response to the large swings in annual supply, ranging from a low of 7.3 cents per pound in 1987 to a high of 59.4 cents per pound in 2012.

Because of this relationship between supply and price, oversupplying the market with tart cherries would have a sharply negative effect on prices, driving down grower returns. The Board, aware of this economic relationship, focuses on using the volume control authority in the order in an effort to balance supply and demand in order to stabilize industry returns. This authority allows the industry to set free and restricted percentages as a way to bring supply and demand into balance. Unrestricted cherries can be marketed by handlers to any outlet, while a quantity corresponding to the restricted percentage must be held by handlers in reserve, diverted, or used for exempted purposes.

This final rule establishes free and restricted percentages using an increased carry-out volume of 55 million pounds for the 2015-16 crop year under the tart cherry marketing order. This action establishes 2015-16 percentages of 80 percent free and 20 percent restricted. These percentages should stabilize marketing conditions and help improve grower returns by adjusting supply to meet market demand. This action regulates tart cherries handled in Michigan, New York, Utah, Washington, and Wisconsin. The authority for this action is provided for in §§ 930.51(a) and 930.52 of the order.

This rule will result in some fruit being diverted from the primary domestic markets. However, as mentioned earlier, the USDA's “Guidelines for Fruit, Vegetable, and Specialty Crop Marketing Orders” (http://www.ams.usda.gov/publications/content/1982-guidelines-fruit-vegetable-marketing-orders) specify that 110 percent of recent years' sales should be made available to primary markets each season before recommendations for volume regulation are approved. The quantity that is available under this action is greater than 110 percent of the average quantity shipped in the prior three years.

In addition, there are secondary uses available for restricted fruit, including the development of new products, sales into new markets, the development of export markets, and being placed in reserve. While these alternatives may provide different levels of return than the sales to primary markets, they play an important industry role. Restricted fruit is utilized for new products, new domestic markets, and development of export markets. In 2014-15, these activities accounted for 21 million pounds in sales, nearly 14 million of which were exports.

Placing tart cherries into reserves is also a key part of balancing supply and demand. Although the industry must bear the handling and storage costs for fruit in reserve, reserves stored in large crop years are used to supplement supplies in short crop years. The reserves allow the industry to mitigate the impact of oversupply in large crop years, while allowing the industry to maintain and supply markets in years where production falls below demand. Further, storage and handling costs are more than offset by the increase in price when moving from a large crop to a short crop year.

In addition, the Board recommended an increased carry-out of 55 million pounds to reach an optimum supply of 243 million pounds. The recommended demand adjustment of an additional 43 million pounds will make the regulation less restrictive. Even with the recommended restriction, over 300 million pounds of fruit will be available to the domestic market. Consequently, it is not anticipated that this action will unduly burden growers or handlers.

While this action could result in some additional costs to the industry, these costs are more than outweighed by the benefits. The purpose of setting restricted percentages is to attempt to bring supply and demand into balance. If the primary market (domestic) is oversupplied with cherries, grower prices decline substantially. Without volume control, the primary market will likely be oversupplied, resulting in lower grower prices.

The three districts in Michigan, along with the districts in New York, Utah, Washington, and Wisconsin, are the restricted areas for this crop year with a combined total production of 240 million pounds. A 20-percent restriction means 192 million pounds are available to be shipped to primary markets from these five states. The 192 million pounds from the restricted districts, nearly 9 million pounds from the unrestricted districts (Oregon and Pennsylvania), and the 104 million pound carry-in inventory make a total of 305 million pounds available as free tonnage for the primary markets. This is similar to the 300 million pounds of total utilized production in 2014-15 and is less restrictive than the 12 percent restriction in 2011-12, which made just under 262 million pounds available. Further, the Board could meet and recommend the release of additional volume during the crop year if conditions so warranted.

Prior to the implementation of the order, grower prices often did not come close to covering the cost of production. The most recent costs of production determined by representatives of Michigan State University are an estimated $0.33 per pound. To assess the impact that volume control has on the prices growers receive for their product, an econometric model has been developed. Based on the model, the use of volume control would have a positive impact on grower returns for this crop year. With volume control, grower prices are estimated to be approximately $0.03 per pound higher than without restrictions.

In addition, absent volume control, the industry could start to build large amounts of unwanted inventories. These inventories would have a depressing effect on grower prices. The econometric model shows for every 1 million-pound increase in carry-in inventories, the average grower price decreases by $0.003 per pound.

Consumer prices largely do not reflect fluctuations in cherry supplies. Therefore, this rule should have little or no effect on consumer prices and should not result in a reduction in retail sales.

The free and restricted percentages established by this rule provide the market with optimum supply and apply uniformly to all regulated handlers in the industry, regardless of size. As the restriction represents a percentage of a handler's volume, the costs, when applicable, are proportionate and should not place an extra burden on small entities as compared to large entities.

The stabilizing effects of this action benefit all handlers by helping them maintain and expand markets, despite seasonal supply fluctuations. Likewise, price stability positively impacts all growers and handlers by allowing them to better anticipate the revenues their tart cherries would generate. Growers and handlers, regardless of size, benefit from the stabilizing effects of this restriction. In addition, the Board determined that increasing carry-out to 55 million pounds should provide processors enough fruit in the pipeline to meet market needs going into the next season.

The Board considered some alternatives in its preliminary restriction discussions that affected this recommended action. The first alternative concerned the average sales in estimating demand for the coming season, and the second alternative regarded the recommended carry-out figure.

Regarding demand, the Board began with the actual sales average of 188 million pounds. There was concern, however, that this value, which incorporated the weather-related crop failure of 2012, would result in an over-restrictive calculation. After considering options in the range of 40 million to 62 million pounds, the Board determined that an adjustment of 43 million pounds, would best meet the industry's sales needs. Thus the other alternatives were rejected and the Board recommended the 43 million pound economic adjustment.

Regarding the carry-out value, the Board previously considered a one-year increase above the 20 million pounds specified in the order to 50 million pounds. However, this season, Board members indicated the carry-out should be even higher to facilitate processing at the end of the crop year. Board members suggested a series of options from 35 million to 60 million pounds of carry-out. Some felt the additional fruit is necessary while others were more cautious about having additional fruit on the market at the time of harvest, which may put downward pressure on prices. In conjunction with the demand adjustment, the Board reached a consensus and recommended the Secretary increase the maximum carry-out to 55 million pounds for the 2015-16 season.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0177, Tart Cherries Grown in the States of MI, NY, PA, OR, UT, WA, and WI. No changes in those requirements as a result of this action are necessary. Should any changes become necessary, they would be submitted to OMB for approval.

This action will not impose any additional reporting or recordkeeping requirements on either small or large tart cherry handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

As noted in the initial regulatory flexibility analysis, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this final rule. One of the public comments received did address the initial regulatory flexibility analysis. A review of that comment is included below as part of the review of all public comments received.

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

In addition, the Board's meeting was widely publicized throughout the tart cherry industry, and all interested persons were invited to attend the meeting and participate in Board deliberations on all issues. Like all Board meetings, the June 25, 2015, and September 10, 2015, meetings were public meetings, and all entities, both large and small, were able to express views on this issue. A proposed rule concerning this action was published in the Federal Register on December 17, 2015 (80 FR 78677). Copies of the rule were sent via email to all Board members and tart cherry handlers. Finally, the rule was made available through the internet by USDA and the Office of the Federal Register. A 30-day comment period ending January 19, 2015, was provided to allow interested persons to respond to the proposal.

Nine comments were received during the comment period in response to the proposal. The commenters included both growers and handlers, and all opposed the proposed regulation. Most of the points made by the commenters had been discussed prior to the Board's vote.

All nine comments made reference to imported tart cherries. Five commenters referred to figures retrieved from the Foreign Agricultural Service's Global Agricultural Trade System (GATS) which indicates an equivalent of more than 200 million pounds of cherries were imported into the U.S. in 2014. The data do indicate that imported volume has grown. The data also indicate tart cherry juice concentrate represents by far the largest segment of imports, which according to the data, has experienced tremendous growth beginning in 2012.

Several of the commenters indicated that the proposed volume restriction would restrict their chances of gaining some of the market share attributed to imports. While the domestic industry did experience a significant drop in shipments in 2012 due to a weather-related incident, with the exclusion of that year, shipments of domestic tart cherries have routinely exceeded 200 million pounds. Given the rapid increase in the import volume of tart cherry juice and the level of domestic shipments, the vast majority of imported tart cherry juice is going to new markets not previously served by the domestic industry. At the very least, these new markets serviced by imported tart cherry juice far exceed the estimated 47 million pounds of tart cherries that are restricted by this regulation.

As such, should domestic handlers decide to compete in these new markets, in most cases, restricted cherries could be used and the handler could receive diversion credits under the new market and market expansion provisions provided under the order. Further, the Board recently recommended and USDA approved extending diversion credits for new markets and market expansion from one year to three years, creating even more opportunities to pursue these new markets. Consequently, handlers would have ample opportunity to compete for new markets using restricted cherries while continuing to service traditional markets with free cherries. In addition, should industry efforts cause demand to exceed existing volume, the Board could meet and recommend the release of additional volume.

Two other commenters indicated imported tart cherries should be included as part of the process for calculating free and restricted percentages. Under the order, when computing and determining percentages for recommendation to USDA, the Board is required to give consideration to several factors, including supplies of competing commodities and the economic factors having a bearing on the marketing of cherries. The Board's discussion regarding establishing free and restricted percentages for this season included considerable discussion regarding imported tart cherries. Concerns were raised and discussed regarding the impact of imported tart cherries on the market and how that would impact a restriction. Discussion also included an estimated price point for imported tart cherry juice as a comparison with that for domestic production. It was also indicated that the Board was working to assemble additional information on tart cherry imports, and the Board voted to establish an import committee to review the import data.

However, in the Board discussion, comments were also made regarding the importance of the order and volume control in avoiding oversupplying the market with tart cherries. The importance of maintaining a reserve in case of another crop failure was also expressed. Other Board members also stated the demand adjustment and the recommended increased carry-out would put sufficient fruit on the market for the coming year. After discussing the available information on imported product and considering the concerns expressed, no motion was made to include an additional adjustment to the calculations based on imported fruit.

Two comments stated that restriction has contributed to the loss of market share to imports, with one requesting USDA reconsider the economic impact of this regulation under the RFA with regard to imports. Aside from a reference to the volume of imported tart cherries, neither comment provided any data in support of these assertions. Based on the information from GATS, tart cherry imports increased substantially beginning in 2012. For 2011-12, the season prior to the season with a significant crop loss due to weather, total shipments were 264 million pounds, with 213 million pounds coming from free sales. While the reduced crop for 2012-13 season had total sales of 123 million pounds, in the years following, sales rebounded to 222 million pounds in 2013-14 (no volume restriction) and to 235 million pounds total sales in 2014-15. The free sales for 2014-15 season were actually higher than those for the 2011-12 season at 214 million.

The utilization numbers as reported by NASS have also been increasing from approximately 230 million pounds in 2011 to 290 million pounds in 2013 and to 298 million pounds in 2014. In addition, the NASS numbers show the frozen segment, the largest utilization of domestic tart cherries, increased from 154 million pounds in 2011 to 158 million pounds in 2013 and to 199 million pounds in 2014. The other category as reported by NASS, which includes juice and dried cherries, also experienced higher numbers in 2013 and 2014 as compared to 2011. The 92 million pounds and 66 million pounds utilized in 2013 and 2014, respectively, are substantially higher than the 37 million pounds utilized in 2011.

Further, with the exception of the 2012-13 season, grower prices have been relatively stable. In 2011, NASS reported an average grower price for domestic tart cherries of $0.298. For the years 2013 and 2014, NASS reported average grower prices of $0.359 and $0.355 per pound, respectively. The figures for 2015 are not yet available.

As previously stated, the demand for tart cherries is inelastic, such that changes in price have minimal effect on total sales volume, yet prices are very sensitive to changes in supply. This is demonstrated by the sharp jump in average grower price in 2012 to $0.594 per pound with the substantial decrease in domestic supply. Given that GATS reports tart cherry imports as approximately 217 million pounds in 2012, 130 million pounds in 2013, and 244 million pounds in 2014, there should be some downward pressure on price if this volume was competing directly for the same market serviced by the domestic tart cherry industry. However, this is not reflected in the available numbers. Using the available sales, utilization, and price data, it is difficult to determine what, if any, specific impact imports have had on the market for domestic tart cherries.

Five comments mentioned the financial burden a restriction would place on growers and handlers. The RFA analysis recognizes that the industry bears a cost when keeping product off the market, but also notes that the gains in prices and stability outweigh that cost. Further, placing tart cherries into reserves is an important part of balancing supply and demand. Although there are costs associated with the storage of fruit, reserves allow the industry to mitigate the impact of oversupply in large production years while helping to maintain and supply markets in years where production falls short or when there are crop failures as in 2002 and 2012. Storage costs are more than offset by the increase in price during years with a short crop as evidenced by the average grower price in 2012. As mentioned in the RFA, the restriction is expected to have a positive impact on price.

While none of the comments suggested an alternative percentage for a volume restriction, most suggest that there should be no restriction. The formula used by the Board in recommending the proposed regulation is based, in part, on sales history. The Board has taken steps to recommend putting additional fruit on the market as carry-out both in this action and in the previous season's regulation. In 2014, the Board recommended a carry-out of 50 million pounds yet entered the 2015-16 season with 104 million pounds of unrestricted fruit on the market. In addition, USDA purchased over 20 million pounds of cherry products since 2014 as emergency surplus purchases, and has announced plans to purchase up to 60 million pounds of tart cherry products in 2016.

For the 2015-16 season, the Board recommended an increase in the carry-out to 55 million pounds, made an economic adjustment to add an additional 43 million pounds to available supply, and an additional 19 million pounds were added under the market growth factor. With these adjustments, there are more than 305 million pounds of tart cherries available for free sales for 2015-16. This volume exceeds total sales from 2011-12 of both free and restricted cherries of 264 million pounds, the last season before the crop disaster in 2012. Further, the order provides numerous alternatives for the use of restricted fruit, such as handler diversion, for complying with the recommended restriction. Therefore, as stated in the RFA, it is not anticipated that this action will unduly burden growers or handlers.

Additional concerns raised in the comments pertain to pending litigation or issues not applicable to the proposed rule.

Accordingly, no changes will be made to the rule as proposed, based on the comments received.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/rules-regulations/moa/small-businesses. Any questions about the compliance guide should be sent to Antoinette Carter at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

After consideration of all relevant matter presented, including the information and recommendation submitted by the Committee and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.

It is further found that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register (5 U.S.C. 553) because handlers are already shipping tart cherries from the 2015-16 crop. Further, handlers are aware of this rule, which was recommended at a public meeting. Also, a 30-day comment period was provided for in the proposed rule.

For the reasons set forth in the preamble, 7 CFR part 930 is amended as follows:

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends Class E airspace at Little Rock AFB, Little Rock, AR.

On March 7, 2016, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to amend the Class E airspace at Little Rock Air Force Base, AR. The air traffic control tower at Dennis F. Cantrell Field, Conway, AR, has closed thereby removing Dennis F. Cantrell Field from the description for Little Rock AFB, (81 FR 11692), Docket No. FAA-2015-3085. Additionally, geographic coordinates for Little Rock AFB and Saline County Airport, Benton, AR, are adjusted. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9Z, dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR part 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.9Z, Airspace Designations and Reporting Points, dated August 6, 2015, and effective September 15, 2015. FAA Order 7400.9Z is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.9Z lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This action amends Title 14, Code of Federal Regulations (14 CFR), Part 71 by amending Class E airspace at Little Rock Air Force Base (AFB), AR. The air traffic control tower at Dennis Cantrell Field, Conway, AR, has closed, and approaches cancelled. This action removes Dennis F. Cantrell Field, Conway, AR, from the airspace designation and regulatory text for Little Rock AFB, as they are no longer needed to define its boundaries. Additionally, geographic coordinates for Little Rock AFB, are changed from (lat. 34°54′59″ N., long. 92°08′47″ W.) to (lat. 34°55′03″ N., long. 92°08′42″ W.) and Saline County Airport, Benton, AR, coordinates are changed from (lat. 34°33′23″ N., long. 92°36′25″ W.) to (lat. 34°35′25″ N., long. 92°28′46″ W.). These minor adjustments reflect the current information in the FAA's aeronautical database.

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

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

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

I. Background

FDA is announcing the availability of a guidance for industry entitled “Prior Notice of Imported Food Questions and Answers (Edition 3): Guidance for Industry.” We are issuing this guidance consistent with our good guidance practices regulation (21 CFR 10.115). The guidance represents the current thinking of FDA on this topic. It does not establish any rights for any person and is not binding on FDA or on the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.

Since publication of edition two of the guidance, FDA has issued a final rule requiring the submission to FDA of prior notice of food, including animal feed, imported or offered for import into the United States (November 7, 2008, 73 FR 66294) and, in accordance with section 304 of FSMA, a final rule requiring the name of any country to which an article has been refused entry be reported in prior notices (May 30, 2013, 78 FR 32359). FDA is issuing a third edition of its prior notice guidance to address questions received since publication of the second edition, clarify previous responses, update previous responses as appropriate to reflect the 2008 final rule, and include information about the new prior notice information requirement created by FSMA.

FDA issued the first and second editions of this guidance on December 16, 2003, and May 3, 2004, respectively. Both editions were issued as Level 1 guidance documents under 21 CFR 10.115. Consistent with FDA's good guidance practices regulations (21 CFR 10.115(g)(2)), the Agency accepted comments, but implemented the documents immediately because it determined that prior public participation was not feasible or appropriate.

In the Federal Register of March 31, 2014 (79 FR 17947), we made available a draft guidance for industry entitled “Draft Guidance for Industry: Prior Notice of Imported Food Questions and Answers (Edition 3)” and gave interested parties an opportunity to submit comments by May 30, 2014, for us to consider before beginning work on the final version of the guidance. We carefully considered all comments received when preparing the final guidance. No substantive changes were made in finalizing the guidance. The guidance announced in this notice finalizes the draft guidance dated March 2014.

Persons with access to the Internet may obtain the guidance at either http://www.fda.gov/Food/GuidanceRegulation/GuidanceDocumentsRegulatoryInformation/default.htm or http://www.regulations.gov. Use the FDA Web site listed in the previous sentence to find the most current version of the guidance.

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

Fairchild Racing is conducting power boat races daily beginning on June 17, 2016 through June 19, 2016. The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the scheduled race event, consisting of various sized power vessels with at least 50 participants on the Cumberland River, presents potential navigational safety hazards. The Captain of the Port Ohio Valley (COTP) was notified of this event earlier this year and upon receiving and understanding all the details of the racing event, determined that additional safety measures are necessary to protect participants, spectators, and waterway users during this event. It is impracticable to publish an NPRM because we must establish this special local regulation by June 17, 2016. This rule provides for a comment period and comments received will be reviewed and analyzed to assist the Coast Guard in future rulemakings establishing similar regulatory requirements. The Coast Guard will notify the public and maritime community that this special local regulation will be in effect and of its enforcement periods via broadcast notices to mariners (BNM).

We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the Federal Register. Delaying the effective date of this rule would be contrary to public interest because immediate action is needed to establish a special local regulation to protect participants and spectators during the “Thunder on the Cumberland” racing event beginning on June 17, 2016.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1233. The Captain of the Port Ohio Valley (COTP) has determined that potential safety hazards associated with a speed-boat race on a navigable waterway present safety concerns for participants, spectators, and other person and vessels on the waterway. This rule is needed to protect personnel, vessels, and these navigable waters before, during, and after the scheduled racing event.

This rule establishes a special local regulation which will be enforced from 9 a.m. to 11 a.m. and 12 p.m. to 6 p.m. daily from June 17, 2016 through June 19, 2016, for all waters of the Cumberland River beginning at mile marker 190.5 and ending at mile marker 194.0. The duration of the special local regulation is intended to ensure the safety of vessels, participants, spectators and other waterway users before, during, and after the scheduled event. No vessel or person would be permitted to enter the regulated area without obtaining permission from the COTP or a designated representative. The regulatory text for this rule appears at the end of this document.

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

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, it has not been reviewed by the Office of Management and Budget.

This regulatory action determination is based on the size, location, duration, and time-of-day of the special local regulation. This special local regulation restricts transit on the Cumberland River from mile 190.5 to mile 194.0, for 8 hours a day for three days in June; Broadcast Notices to Mariners and Local Notices to Mariners will inform the community of this special local regulation and any changes in the planned scheduled so that they may plan accordingly for transits during this short restriction. Vessel traffic may request permission from the COTP Ohio Valley or a designated representative to enter the restricted area.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves special local regulated area that would prohibit entry to unauthorized vessels. It is categorically excluded from further review under paragraph 34(h) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

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

We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of future regulations and rulemakings. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

We encourage you to submit comments through the Federal eRulemaking Portal at http://www.regulations.gov. If your material cannot be submitted using http://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

We accept anonymous comments. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided. For more about privacy and the docket, you may review a Privacy Act notice regarding the Federal Docket Management System in the March 24, 2005, issue of the Federal Register (70 FR 15086).

Documents mentioned in this TFR as being available in the docket, and all public comments, will be in our online docket at http://www.regulations.gov and can be viewed by following that Web site's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:

The Captain of the Port (COTP) Ohio Valley is establishing, amending, and updating its current list of recurring special local regulations codified under 33 CFR 100.801 in Table no. 1, for the COTP Ohio Valley zone.

On January 25, 2016, the Coast Guard published a notice of proposed rulemaking (NPRM) titled Sector Ohio Valley Annual and Recurring Special Local Regulations Update (81 FR 3976). During the comment period that ended April 25, 2016, the Coast Guard received information regarding dates for three events from the event sponsors. This information is discussed in this document.

We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the Federal Register. Though we are not providing a full 30-day delay in the effective date, the Coast Guard did provide notice and the opportunity to comment through the NPRM process and is now providing as much notice as possible before the first recurring event enforcement is required on June 19. It is impracticable to provide a full 30-days notice because this rule must be effective June 19, 2016 to accommodate the first event.

The Coast Guard's authority for establishing a special local regulation is contained at 33 U.S.C. 1233. The Coast Guard is amending and updating the special local regulations under 33 CFR part 100 to include the most up to date list of recurring special local regulations for events held on or around navigable waters within the Sector Ohio Valley AOR. These events include marine parades, boat races, swim events, and others. The current list under 33 CFR 100.801 requires amending to provide new information on existing special local regulations, include new special local regulations expected to recur annually or biannually, and to remove special local regulations that are no longer required. Issuing individual regulations for each new special local regulation, amendment, or removal of an existing special local regulation creates unnecessary administrative costs and burdens. This rulemaking reduces administrative overhead and provides the public with notice through publication in the Federal Register of the upcoming recurring special local regulations.

As noted above, we received information regarding three recurring events from the event sponsors during the NPRM comment period. This information requires changes to the regulatory text of this rule from the proposed rule in the NPRM. Those changes are as follows:

Change 1: The sponsor of the Owensboro Air show requested a change to the proposed event date as listed in Table 1, Line 54. Instead of occurring 3 days during the first or second weekend in September, the new date will be published in the final rule as: 3 days during one of the last three weekends in September. This change was requested to enable the Air Show to take place without conflicting with other events occurring in September.

Change 2: The sponsor of the REV3 Triathlon requested a change to the proposed date as listed in Table 1, Line 4. Instead of occurring 1 day during the first or second weekend in May, the new date will be published in the final rule as: 1 day during the third or fourth weekend in May starting in 2016. This change was requested due to scheduling conflicts with other events. This final rule was not published in time for the May 22, 2016 occurrence of this event. Therefore, a temporary final rule for this event was issued on May 20, 2016. That rule is accessible as indicated under ADDRESSES.

Change 3: The sponsor of the Hadi-Shrine/Evansville Freedom Festival Air Show informed the Coast Guard that the proposed expanded date period from 3 to 4 days was no longer needed and the currently published date period of 3 days fits the air show portion of their event. Therefore, the date for this event as listed in Table 1, Line 46 will remain: 3 days during the second or third weekend in June. The event sponsor also informed the Coast Guard that the 2016 occurrence of this event fell on the fourth weekend in June. Therefore, a separate temporary final rule is being issued to establish the necessary special local regulation on June 24-26, 2016. That rule is available as indicated under ADDRESSES.

These requested changes are based on the individual sponsors' efforts to coordinate events alongside others in the local community. In some instances, these changes have been advertised to and planned on by the local community, and minimally impact the dates of 3 events as listed in the NPRM. These revised dates are also considered within the current environmental review. Therefore, the Coast Guard is publishing this final rule with the requested date changes. All proposed new additions to and removals from the recurring list remain the same as in the NPRM.

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

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, it has not been reviewed by the Office of Management and Budget.

The Coast Guard expects the economic impact of this rule to be minimal, and therefore a full regulatory evaluation is unnecessary. This rule establishes special local regulations limiting access to certain areas under 33 CFR part 100 within Sector Ohio Valley's AOR. The effect of this rulemaking will not be significant because these special local regulations are limited in scope and duration. Additionally, the public is given advance notification through local forms of notice, the Federal Register, and/or Notices of Enforcement and thus will be able to plan around the special local regulations in advance. Deviation from the special local regulations established through this proposed rulemaking may be requested from the appropriate COTP and requests will be considered on a case-by-case basis. Broadcast Notices to Mariners and Local Notices to Mariners will also inform the community of these special local regulations so that they may plan accordingly for these short restrictions on transit. Vessel traffic may request permission from the COTP Ohio Valley or a designated representative to enter the restricted areas.

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

This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit the special local regulation areas during periods of enforcement. The special local regulations will not have a significant economic impact on a substantial number of small entities because they are limited in scope and will be in effect for short periods of time. Before the enforcement period, the Coast Guard COTP will issue maritime advisories widely available to waterway users. Deviation from the special local regulations established through this rulemaking may be requested from the appropriate COTP and requests will be considered on a case-by-case basis.

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

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

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order13132.

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

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves the establishment of special local regulations related to marine event permits for marine parades, regattas, and other marine events. It is categorically excluded from further review under paragraph 34(h) of Figure 2-1 of the Commandant Instruction.

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

For the reasons discussed in the preamble, the U.S. Coast Guard amends 33 CFR part 100 as follows:

On January 25, 2016, the Coast Guard published a notice of proposed rulemaking (NPRM) titled Sector Ohio Valley Annual and Recurring Special Local Regulations Update (81 FR 3976). That proposed rulemaking included expanding the date for this event and related special local regulation in the permanent list of recurring events under 33 CFR 100.801, Table 1, from 3 days to 4 days during the second or third weekend in June. There we stated why we issued the NPRM, and invited comments on our proposed regulatory action. The NPRM received no adverse comments and the comment period closed April 25, 2016. However, during the comment period for the NPRM, the sponsor of the Hadi Shrine/Evansville Freedom Festival Air Show informed us that the air show portion of the event would continue to take place for only 3 days, including a practice day. Therefore, there is no need to extend the effective period from 3 to 4 days for this event. However, for the 2016 occurrence the festival dates fall on the fourth weekend in June, so this temporary final rule is being issued for the 2016 occurrence only. It is impracticable to publish an NPRM at this time because this temporary final rule is necessary to establish the special local regulation for this year's occurrence beginning June 24, 2016.

We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the Federal Register. Delaying this rule to provide a full 30 days notice is unnecessary as this event is a recurring event advertised to, and planned on, by the local community and waterway users that are familiar with this location on the Ohio River. Delaying this rule would also be contrary to public interest because immediate action is necessary for the safety of life during an air show taking place over this navigable waterway. Broadcast Notices to Mariners (BNM) and information sharing with the waterway users will update mariners of the restrictions, requirements and enforcement times during this event.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1233. The Captain of the Port Ohio Valley (COTP) has determined that potential hazards associated with the air show starting June 24, 2016 will be a safety concern for all waters of the Ohio River, surface to bottom, extending from mile 791.0 to 795.0. The purpose of this rule is to ensure safety of life on the navigable waters in the temporary regulated area before, during, and after the Evansville Freedom Festival Air Show.

This rule establishes a special local regulation from June 24 through June 26, 2016. The special local regulation will cover all waters of the Ohio River, surface to bottom, extending from mile 791.0 to 795.0. Transit into and through this area is prohibited from 11:00 a.m. to 6:00 p.m. each day beginning June 24, 2016 through June 26, 2016. The duration of the special local regulation is intended to ensure the safety of vessels and these navigable waters before, during, and after the scheduled air show and fireworks displays. No vessel or person will be permitted to enter the special local regulation without obtaining permission from the COTP or a designated representative. Deviations request will be considered and reviewed on a case-by-case basis. The COTP Ohio Valley may be contacted by telephone at 1-800-253-7475 or can be reached by VHF-FM channel 16. Public notifications will be made to the local maritime community prior to the event through the Local Notice to Mariners, and Broadcast Notice to Mariners.

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

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, it has not been reviewed by the Office of Management and Budget.

This regulatory action determination is based on the size, location, duration, and time-of-year of the special local regulation. The temporary special local regulation will only be in effect for approximately seven hours each day. The Coast Guard expects minimum adverse impact to mariners from the special local regulation's activation as the event has been advertised to the public. Also, mariners may request authorization from the COTP Ohio Valley or the designated representatives to transit the special local regulations.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a special local regulation lasting less than seven hours a day that will prohibit entry on all waters of the Ohio River, surface to bottom, extending from mile 791.0 to 795.0. It is categorically excluded from further review under paragraph 34(h) of Figure 2-1 of the Commandant Instruction.

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

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:

The Coast Guard will enforce the regulations in 33 CFR 165.1124 for a safety zone on the Colorado River in Laughlin, Nevada and Bullhead City, Arizona for the Laughlin/Bullhead City Rockets Over the River Fireworks in 33 CFR 165.1124, Table 1, Item 2 of that section from 8 p.m. through 10 p.m. on July 2 and July 4, 2016. This enforcement action is being taken to provide for the safety of life on navigable waterways during the fireworks event. Our regulation for annual fireworks events on the Colorado River within the San Diego Captain of the Port Zone identifies the regulated entities for this event. Under the provisions of 33 CFR 165.1124, a vessel may not enter the regulated area, unless it receives permission from the Captain of the Port, or his designated representative. Spectator vessels may safely transit outside the regulated area but may not anchor, block, loiter, or impede the transit of participants or official patrol vessels. The Coast Guard may be assisted by other Federal, State, or Local law enforcement agencies in enforcing this regulation.

This document is issued under authority of 33 CFR 165.1124 and 5 U.S.C. 552(a). In addition to this document in the Federal Register, the Coast Guard will provide the maritime community with advance notification of this enforcement period via the Local Notice to Mariners and local advertising by the event sponsor.

If the Captain of the Port or his designated representative determines that the regulated area need not be enforced for the full duration stated on this document, he or she may use a Broadcast Notice to Mariners or other communications coordinated with the event sponsor to grant general permission to enter the regulated area.

The Coast Guard will enforce the regulations in 33 CFR 165.1124 for a safety zone on the Colorado River in Laughlin, Nevada for the Avi Resort and Casino Independence Day Fireworks in 33 CFR 165.1124, Table 1, Item 3 of that section, from 8 p.m. through 10 p.m. on July 4, 2016. This enforcement action is being taken to provide for the safety of life on navigable waterways during the fireworks event. Our regulation for annual fireworks events on the Colorado River within the San Diego Captain of the Port Zone identifies the regulated entities for the this event. Under the provisions of 33 CFR 165.1124, a vessel may not enter the regulated area, unless it receives permission from the Captain of the Port, or his designated representative. Spectator vessels may safely transit outside the regulated area but may not anchor, block, loiter, or impede the transit of participants or official patrol vessels. The Coast Guard may be assisted by other Federal, State, or Local law enforcement agencies in enforcing this regulation.

This document is issued under authority of 33 CFR 165.1124 and 5 U.S.C. 552(a). In addition to this document in the Federal Register, the Coast Guard will provide the maritime community with advance notification of this enforcement period via the Local Notice to Mariners and local advertising by the event sponsor.

If the Captain of the Port or his designated representative determines that the regulated area need not be enforced for the full duration stated on this document, he or she may use a Broadcast Notice to Mariners or other communications coordinated with the event sponsor to grant general permission to enter the regulated area.

The Coast Guard will enforce the safety zone listed in 33 CFR 165.151 Table 1 on the following dates and times:

Under the provisions of 33 CFR 165.151, the fireworks displays listed above are established as safety zones. During the enforcement period, persons and vessels are prohibited from entering into, transiting through, mooring, or anchoring within these safety zones unless they receive permission from the COTP or designated representative.

This notice of enforcement is issued under authority of 33 CFR part 165 and 5 U.S.C. 552(a). In addition to this notice of enforcement in the Federal Register, the Coast Guard will provide the maritime community with advance notification of this enforcement period via the Local Notice to Mariners or marine information broadcasts. If the COTP determines that these safety zones need not be enforced for the full duration stated in this notice of enforcement, a Broadcast Notice to Mariners may be used to grant general permission to enter the regulated area.

The Coast Guard will enforce the regulations in 33 CFR 165.1123 for safety zones on the waters of San Diego Bay, CA for the Big Bay Boom Fourth of July Fireworks in 33 CFR 165.1123, Table 1, Item 5 of that section from 8 p.m. through 10 p.m. on July 4, 2016. This enforcement action is being taken to provide for the safety of life on navigable waterways during the fireworks event. Our regulation for southern California annual fireworks for the San Diego Captain of the Port Zone identifies the regulated entities for this event. Under the provisions of 33 CFR 165.1123, a vessel may not enter the regulated areas, unless it receives permission from the Captain of the Port, or his designated representative. Spectator vessels may safely transit outside the regulated areas but may not anchor, block, loiter, or impede the transit of participants or official patrol vessels. The Coast Guard may be assisted by other Federal, State, or Local law enforcement agencies in enforcing this regulation.

This document is issued under authority of 33 CFR 165.1123 and 5 U.S.C. 552(a). In addition to this document in the Federal Register, the Coast Guard will provide the maritime community with advance notification of this enforcement period via the Local Notice to Mariners and local advertising by the event sponsor.

If the Captain of the Port or his designated representative determines that the regulated area need not be enforced for the full duration stated on this document, he or she may use a Broadcast Notice to Mariners or other communications coordinated with the event sponsor to grant general permission to enter the regulated area.

The Coast Guard will enforce the regulations in 33 CFR 165.1123 for a safety zone on the waters of Glorietta Bay, CA for the Coronado Glorietta Bay Fourth of July Fireworks in 33 CFR 165.1123, Table 1, Item 3, from 8 p.m. through 10 p.m. on July 4, 2016. This enforcement action is being taken to provide for the safety of life on navigable waterways during the fireworks event. Our regulation for southern California annual fireworks for the San Diego Captain of the Port Zone identifies the regulated entities for this event. Under the provisions of 33 CFR 165.1123, a vessel may not enter the regulated areas, unless it receives permission from the Captain of the Port, or his designated representative. Spectator vessels may safely transit outside the regulated areas but may not anchor, block, loiter, or impede the transit of participants or official patrol vessels. The Coast Guard may be assisted by other Federal, State, or Local law enforcement agencies in enforcing this regulation.

This document is issued under authority of 33 CFR 165.1123 and 5 U.S.C. 552(a). In addition to this document in the Federal Register, the Coast Guard will provide the maritime community with advance notification of this enforcement period via the Local Notice to Mariners and local advertising by the event sponsor.

If the Captain of the Port or his designated representative determines that the regulated area need not be enforced for the full duration stated on this document, he or she may use a Broadcast Notice to Mariners or other communications coordinated with the event sponsor to grant general permission to enter the regulated area.

Purpose of Program: The Fulbright-Hays GPA Program supports short-term and long-term overseas projects in training, research, and curriculum development in modern foreign languages and area studies for groups of teachers, undergraduate and graduate students, and faculty engaged in a common endeavor. Fulbright-Hays GPA short-term projects (GPA short-term projects) may include seminars, curriculum development, or group research or study. Fulbright-Hays GPA long-term projects (GPA long-term projects) support advanced overseas intensive programs that focus on the humanities, social sciences, or languages.

Applicable Program Regulations: 34 CFR part 662 and 664.

We published a notice of proposed priorities and definitions for this program in the Federal Register on March 10, 2016 (81 FR 12622). That notice contained background information and our reasons for proposing the particular priorities.

There are no differences between the proposed priorities and definitions and these final priorities and definitions.

Public Comment: In response to our invitation in the notice of proposed priorities and definitions, we did not receive any comments on the proposed priorities and definitions.

Applications for GPA short-term projects from the following types of institutions and organizations:

Applications for GPA long-term advanced overseas intensive language training projects from MSIs.

When inviting applications for a competition using one or more priorities, we designate the type of each priority as absolute, competitive preference, or invitational through a notice in the Federal Register. The effect of each type of priority follows:

Absolute priority: Under an absolute priority, we consider only applications that meet the priority (34 CFR 75.105(c)(3)).

Competitive preference priority: Under a competitive preference priority, we give competitive preference to an application by (1) awarding additional points, depending on the extent to which the application meets the priority (34 CFR 75.105(c)(2)(i)); or (2) selecting an application that meets the priority over an application of comparable merit that does not meet the priority (34 CFR 75.105(c)(2)(ii)).

Invitational priority: Under an invitational priority, we are particularly interested in applications that meet the priority. However, we do not give an application that meets the priority a preference over other applications (34 CFR 75.105(c)(1)).

The Assistant Secretary for Postsecondary Education establishes the following definitions for this program. We may apply one or more of these definitions in any year in which this program is in effect.

Minority-serving institution (MSI) means an institution that is eligible to receive assistance under sections 316 through 320 of part A of title III, under part B of title III, or under title V of the Higher Education Act of 1965, as amended (HEA).

Community college means an institution that meets the definition in section 312(f) of the Higher Education Act of 1965, as amended, (HEA) (20 U.S.C. 1058(f)); or an institution of higher education (as defined in section 101 of the HEA (20 U.S.C. 1001)) that awards degrees and certificates, more than 50 percent of which are not bachelor's degrees (or an equivalent).

New applicant means any applicant that has not received a discretionary grant from the Department of Education under the Fulbright-Hays Act prior to the deadline date for applications under this program.

State educational agency (SEA) means the State board of education or other agency or officer primarily responsible for the supervision of public elementary and secondary schools in a State. In the absence of this officer or agency, it is an officer or agency designated by the Governor or State law.

This notice does not preclude us from proposing additional priorities, requirements, definitions, or selection criteria, subject to meeting applicable rulemaking requirements.

Under Executive Order 12866, the Secretary must determine whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by the Office of Management and Budget (OMB). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may—

(1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities in a material way (also referred to as an “economically significant” rule);

(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impacts of entitlement 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 stated in the Executive order.

This final regulatory action is not a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866.

We have also reviewed this final regulatory action under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—

(1) Propose or adopt regulations only upon a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);

(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations;

(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);

(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and

(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.

Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”

We are issuing these final priorities and final definitions only on a reasoned determination that their benefits justify their costs. In choosing among alternative regulatory approaches, we selected those approaches that maximize net benefits. Based on the analysis that follows, the Department believes that this regulatory action is consistent with the principles in Executive Order 13563.

We also have determined that this regulatory action does not unduly interfere with State, local, and tribal governments in the exercise of their governmental functions.

In accordance with both Executive orders, the Department has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action. The potential costs are those resulting from statutory requirements and those we have determined as necessary for administering the Department's programs and activities.

Intergovernmental Review: This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive order is to foster an intergovernmental partnership and a strengthened federalism. The Executive order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance.

This document provides early notification of our specific plans and actions for this program.

Accessible Format: Individuals with disabilities can obtain this document in an accessible format (e.g., Braille, large print, audiotape, or compact disc) on request to the program contact person listed under FOR FURTHER INFORMATION CONTACT.

Electronic Access to This Document: The official version of this document is the document published in the Federal Register. Free Internet access to the official edition of the Federal Register and the Code of Federal Regulations is available via the Federal Digital System at: www.thefederalregister.org/fdsys. At this site you can view this document, as well as all other documents of this Department published in the Federal Register, in text or Adobe Portable Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at the site.

You may also access documents of the Department published in the Federal Register by using the article search feature at: www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.

I. Change in IBR Format

This format revision will affect the “Identification of plan” section of 40 CFR part 52, as well as the format of the SIP materials that will be available for public inspection at the National Archives and Records Administration (NARA) and the EPA Region 8 Office.

Each state has a SIP containing the control measures and strategies used to attain and maintain the national ambient air quality standards (NAAQS) and achieve certain other Clean Air Act (Act) requirements (e.g., visibility requirements, prevention of significant deterioration). The SIP is extensive, containing such elements as air pollution control regulations, emission inventories, monitoring network descriptions, attainment demonstrations, and enforcement mechanisms.

Each SIP revision submitted by Utah must be adopted at the state level after undergoing reasonable notice and public hearing. SIPs submitted to EPA to attain or maintain the NAAQS must include enforceable emission limitations and other control measures, schedules and timetables for compliance.

EPA evaluates submitted SIPs to determine if they meet the Act's requirements. If a SIP meets the Act's requirements, EPA will approve the SIP. EPA's notice of approval is published in the Federal Register and the approval is then codified at 40 CFR part 52. Once EPA approves a SIP, it is enforceable by EPA and citizens in federal district court.

We do not reproduce in 40 CFR part 52 the full text of the Utah regulations that we have approved. Instead, we incorporate them by reference or IBR. We approve a given state regulation with a specific effective date and then refer the public to the location(s) of the full text version of the state regulation(s) should they want to know which measures are contained in a given SIP (see I.F., Where You Can Find a Copy of the SIP Compilation).

The SIP is a dynamic document which the state can revise as necessary to address the unique air pollution problems in the state. Therefore, EPA from time to time must take action on SIP revisions containing new and/or revised regulations.

On May 22, 1997 (62 FR 27968), EPA announced revised procedures for IBR of federally approved SIPs. The procedures announced included: (1) A new process for IBR of material submitted by states into compilations and a process for updating those compilations on roughly an annual basis; (2) a revised mechanism for announcing EPA approval of revisions to an applicable SIP and updating both the compilations and the CFR; and (3) a revised format for the “Identification of plan” sections for each applicable subpart to reflect these revised IBR procedures.

We have organized into a compilation the federally-approved regulations, source-specific requirements and nonregulatory provisions we have approved into the SIP. These compilations may be found at https://www.epa.gov/approved-sips. In addition, we maintain hard copies of the compilation which are updated periodically.

Each compilation contains three parts. Part one contains the state regulations that have been approved, part two contains the source-specific requirements that have been approved as part of the SIP (if any), and part three contains non-regulatory provisions that have been approved. Each compilation contains a table of identifying information for each regulation, each source-specific requirement, and each nonregulatory provision. The state effective dates in the tables indicate the date of the most recent revision to a particular approved regulation. The table of identifying information in the compilation corresponds to the table of contents published in 40 CFR part 52 for the state. The EPA Regional Offices have the primary responsibility for ensuring accuracy and updating the compilations.

EPA Region 8 developed and will maintain the compilation for Utah. An electronic copy of the compilation is contained at https://www.epa.gov/approved-sips. SIP materials which are incorporated by reference into 40 CFR part 52 are also available for inspection at the following locations: National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741-6030, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html, and the EPA Region 8 Office, 1595 Wynkoop Street, Denver, Colorado 80202.

In order to better serve the public, EPA has revised the organization of the “Identification of plan” section in 40 CFR part 52 and included additional information to clarify the elements of the SIP.

The revised Identification of plan section for Utah contains five subsections:

1. Purpose and scope (see 40 CFR 52.2320(a));

2. Incorporation by reference (see 40 CFR 52.2320(b));

3. EPA-approved regulations (see 40 CFR 52.2320(c));

4. EPA-approved source-specific requirements (see 40 CFR 52.2320(d)); and

5. EPA-approved nonregulatory provisions such as transportation control measures, statutory provisions, control strategies, monitoring networks, etc. (see 40 CFR 52.2320(e)).

All revisions to the applicable SIP are federally enforceable as of the effective date of EPA's approval of the respective revision. In general, SIP revisions become effective 30 to 60 days after publication of EPA's SIP approval action in the Federal Register. In specific cases, a SIP revision action may become effective less than 30 days or greater than 60 days after the Federal Register publication date. In order to determine the effective date of EPA's approval for a specific Utah SIP provision that is listed in 40 CFR 52.2320 (c), (d), or (e), consult the volume and page of the Federal Register cited in 40 CFR 52.2320 for that particular provision.

To facilitate enforcement of previously approved SIP provisions and to provide a smooth transition to the new SIP processing system, we are retaining the original Identification of plan section (40 CFR 52.2324). This section previously appeared at 40 CFR 52.2320. After an initial two-year period, we will review our experience with the new table format and will decide whether to retain the original identification of plan section (40 CFR 52.2324) for some further period.

This action constitutes a “housekeeping” exercise to reformat the codification of the EPA-approved Utah SIP.

EPA has determined that this action falls under the “good cause” exemption in section 553(b)(3)(B) of the Administrative Procedure Act (APA) which, upon a finding of “good cause” authorizes agencies to dispense with public participation, and section 553(d)(3), which allows an agency to make a rule effective immediately (thereby avoiding the 30-day delayed effective date otherwise provided for in the APA). This action simply reformats the codification of provisions which are already in effect as a matter of law.

Under section 553 of the APA, an agency may find good cause where procedures are “impractical, unnecessary, or contrary to the public interest.” Public comment is “unnecessary” and “contrary to the public interest” since the codification only reflects existing law. Likewise, there is no purpose served by delaying the effective date of this action.

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 the Utah regulations described in the 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 Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and is therefore not subject to review by the Office of Management and Budget. This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866. Because the agency has made a “good cause” finding that this action is not subject to notice-and-comment requirements under the Administrative Procedure Act or any other statute as indicated in the SUPPLEMENTARY INFORMATION section, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), or to sections 202 and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). In addition, this action does not significantly or uniquely affect small governments or impose a significant intergovernmental mandate, as described in sections 203 and 204 of UMRA. This rule also does not have a substantial direct effect on one or more Indian tribes, on the relationship between the federal government and Indian tribes, or on the distribution of power and responsibilities between the federal government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it 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, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant. This rule does not involve technical standards; thus the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. The rule also does not involve special consideration of environmental justice related issues as required by Executive Order 12898 (59 FR 7629, February 16, 1994). This rule does not impose an information collection burden under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). EPA's compliance with these statutes and Executive Orders for the underlying rules are discussed in previous actions taken on the state's rules.

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. Section 808 allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary or contrary to the public interest. This action simply codifies provisions which are already in effect as a matter of law in federal and approved state programs. 5 U.S.C. 808(2). As stated previously, EPA has made such a good cause finding and established an effective date of June 16, 2016. 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 change to the identification of plan for Utah is not a “major rule” as defined by 5 U.S.C. 804(2).

EPA has also determined that the provisions of section 307(b)(1) of the Clean Air Act pertaining to petitions for judicial review are not applicable to this action. Prior EPA rulemaking actions for each individual component of the Utah SIP compilation had previously afforded interested parties the opportunity to file a petition for judicial review in the United States Court of Appeals for the appropriate circuit within 60 days of such rulemaking action. Thus, EPA sees no need in this action to reopen the 60-day period for filing such petitions for judicial review for this “Identification of plan” reorganization action for Utah.

40 CFR part 52 is amended to read as follows:

I. Background

On July 18, 1997, the EPA promulgated a new 24-hour and a new annual NAAQS for PM2.5 (62 FR 38652). Subsequently, on December 14, 2012, the EPA revised the level of the health based (primary) annual PM2.5 standard to 12 micrograms per cubic meter (µg/m3). See 78 FR 3086 (January 15, 2013).1

Pursuant to section 110(a)(1) of the CAA, states are required to submit SIPs meeting the applicable requirements of section 110(a)(2) within three years after promulgation of a new or revised NAAQS or within such shorter period as EPA may prescribe. Section 110(a)(2) requires states to address basic SIP elements such as requirements for monitoring, basic program requirements, and legal authority that are designed to assure attainment and maintenance of the NAAQS. Section 110(a) imposes the obligation upon states to make a SIP submission to EPA for a new or revised NAAQS, but the contents of that submission may vary depending upon the facts and circumstances. In particular, the data and analytical tools available at the time the state develops and submits the SIP for a new or revised NAAQS affect the content of the submission. The content of such SIP submission may also vary depending upon what provisions the state's existing SIP already contains.

On July 16, 2015, the Commonwealth of Virginia, through the Virginia Department of Environmental Quality (VADEQ), submitted a SIP revision that addresses the infrastructure elements specified in section 110(a)(2) of the CAA necessary to implement, maintain, and enforce the 2012 PM2.5 NAAQS.2 On March 7, 2016 (81 FR 11711), EPA published a notice of proposed rulemaking (NPR) proposing approval of the Virginia July 16, 2015 submittal. In the NPR, EPA proposed approval of the following infrastructure elements: Section 110(a)(2)(A), (B), (C), (D)(i)(II) (prevention of significant deterioration), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M).

At this time, EPA is not taking action on section 110(a)(2)(D)(i)(I) of the CAA relating to interstate transport of emissions because Virginia's July 16, 2016 infrastructure SIP submittal did not include provisions for this element; therefore EPA will take later, separate action on section 110(a)(2)(D)(i)(I) for the 2012 PM2.5 NAAQS for Virginia as explained in the NPR. Additionally, EPA is not at this time taking action on section 110(a)(2)(D)(i)(II) for visibility protection for the 2012 PM2.5 NAAQS as explained in the NPR. Although Virginia's infrastructure SIP submittal for the 2012 PM2.5 NAAQS referred to Virginia's regional haze SIP for section 110(a)(2)(D)(i)(II) for visibility protection, EPA intends to take later, separate action on Virginia's submittal for these elements as explained in the NPR and the Technical Support Document (TSD) which accompanied the NPR. Finally, Virginia did not submit section 110(a)(2)(I) which pertains to the nonattainment requirements of part D, Title I of the CAA, because this element is not required to be submitted by the 3-year submission deadline of section 110(a)(1) and will be addressed in a separate process if necessary.

The rationale supporting EPA's proposed rulemaking action, including the scope of infrastructure SIPs in general, is explained in the published NPR and the TSD accompanying the NPR and will not be restated here. The NPR and TSD are available in the docket for this rulemaking at www.regulations.gov, Docket ID Number EPA-R03-OAR-2015-0838. No public comments were received on the NPR.

EPA is approving, as a revision to the Virginia SIP, the following elements of Virginia's July 16, 2015 SIP revision for the 2012 PM2.5 NAAQS: Section 110(a)(2)(A), (B), (C), (D)(i)(II) (prevention of significant deterioration), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). Virginia's SIP revision provides the basic program elements specified in section 110(a)(2) necessary to implement, maintain, and enforce the 2012 PM2.5 NAAQS. This final rulemaking action does not include action on sections 110(a)(2)(D)(i)(I) (interstate transport of emissions), and (D)(i)(II) (visibility protection) for the 2012 PM2.5 NAAQS as previously discussed. Additionally, EPA is not taking action on section 110(a)(2)(I) which pertains to the nonattainment planning requirements of part D, title I of the CAA, because this element is not required to be submitted by the 3-year submission deadline of section 110(a)(1) of the CAA, and will be addressed in a separate process if necessary.

In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information that: (1) Are generated or developed before the commencement of a voluntary environmental assessment; (2) are prepared independently of the assessment process; (3) demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) are required by law.

On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce federally authorized environmental programs in a manner that is no less stringent than their federal counterparts. . . .” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by federal law to maintain program delegation, authorization or approval.”

Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with federal law, which is one of the criteria for immunity.”

Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the CAA is likewise unaffected by this, or any, state audit privilege or immunity law.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA 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” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

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

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

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

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

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

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

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

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

The SIP is not approved to apply on any Indian reservation land as defined in 18 U.S.C. 1151 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 August 15, 2016. 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, which satisfies certain infrastructure requirements of section 110(a)(2) of the CAA for the 2012 PM2.5 NAAQS for the Commonwealth of Virginia, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

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

Table 1 lists the rules addressed by this action with the dates that they were adopted by the local air agencies and submitted by the California Air Resources Board (CARB).

On September 11, 2014, and January 19, 2016, the EPA determined that the submittals for EKAPCD Rule 410.9 and YSAQMD Rule 1.1 respectively met the completeness criteria in 40 CFR part 51 Appendix V, which must be met before formal EPA review.

There are no previous versions of Rule 410.9 in the SIP. We approved an earlier version of Rule 1.1 into the SIP on April 28, 2015 (80 FR 23449).

VOCs help produce ground-level ozone, smog and PM, which harm human health and the environment. Section 110(a) of the CAA requires States to submit regulations that control VOC emissions. Rule 410.9 limits and controls VOC emission from surface coating operations of wood products. The revisions to Rule 1.1 do not have a direct effect on air pollution emissions; they amend the definition of VOC that is used in other YSAQMD rules to exempt certain substances that have been determined to have negligible photochemical reactivity and which are excluded from the definition applied by the EPA. The EPA's technical support documents (TSDs) have more information about these rules.

SIP rules must be enforceable (see CAA section 110(a)(2)), must not interfere with applicable requirements concerning attainment and reasonable further progress or other CAA requirements (see CAA section 110(l)), and must not modify certain SIP control requirements in nonattainment areas without ensuring equivalent or greater emissions reductions (see CAA section 193).

Generally, SIP rules must require Reasonably Available Control Technology (RACT) for each category of sources covered by a Control Techniques Guidelines (CTG) document as well as each major source of VOCs in ozone nonattainment areas classified as moderate or above (see CAA sections 182(b)(2)). The EKAPCD and the YSAQMD regulate ozone areas classified as Marginal Nonattainment and Severe Nonattainment respectively for the federal 8-hour 2008 Ozone Standard. 40 CFR 81.305. The TSDs have more information about these requirements as they relate to the submitted rules.

Guidance and policy documents that we used to evaluate enforceability, revision/relaxation and rule stringency requirements for the applicable criteria pollutants include the following:

1. “State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” (57 FR 13498, April 16, 1992 and 57 FR 18070, April 28, 1992).

2. “Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations” (“the Bluebook,” U.S. EPA, May 25, 1988; revised January 11, 1990).

3. “Guidance Document for Correcting Common VOC & Other Rule Deficiencies” (“the Little Bluebook”, EPA Region 9, August 21, 2001).

4. Control Techniques Guidelines, “Control of Volatile Organic Compound Emissions from Wood Furniture Manufacturing Operations” (EPA-453/R-96-007, April 1996).

5. Control Techniques Guidelines, “Control Techniques Guidelines for Flat Wood Paneling Coatings” (EPA-453/R-06-004, September 2006).

6. Code of Federal Regulations, Title 40, Chapter C, Part 51, Subpart F, Section 51.100, “Definitions” (40 CFR 51.100).

We believe these rules are consistent with the relevant policy and guidance regarding enforceability, stringency and SIP relaxations. The TSDs have more information on our evaluation.

The TSDs describe additional rule revisions that we recommend for the next time the local agency modifies the rules but which are not currently the basis for rule disapproval.

As authorized in section 110(k)(3) of the Act, the EPA is fully approving the submitted rules because we believe they fulfill all relevant requirements. We do not think anyone will object to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this issue of the Federal Register, we are simultaneously proposing approval of the same submitted rules. If we receive adverse comments by July 18, 2016, we will publish a timely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on August 15, 2016. This will incorporate these rules into the federally enforceable SIP.

Please note that if the EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, the EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the EKAPCD and YSAQMD rules described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these documents available electronically through www.regulations.gov and in hard copy at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 15, 2016. 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. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the Proposed Rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that the EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:

NMFS received a letter from CBD, an environmental non-governmental organization, on April 9, 2014. In the letter, CBD asserted that PBF (Thunnus orientalis) are not adequately protected under the Fishery Management Plan for U.S. West Coast Fisheries for Highly Migratory Species (HMS FMP) and that the Pacific Council failed to meet its statutory duty to develop recommendations for domestic regulations in response to NMFS' determination that the PBF stock is overfished and subject to overfishing (78 FR 41033, July 9, 2013). Specifically, CBD petitioned NMFS to amend the HMS FMP or initiate a rulemaking under the authority of the MSA, 16 U.S.C. 1801 et seq., to include PBF as a prohibited species until the stock is rebuilt, thereby placing a moratorium on retention of PBF by U.S. fishing vessels. As an alternative, CBD proposed that NMFS establish annual catch limits and a permanent minimum size requirement to protect PBF of age classes 1 and 2 and that NMFS amend the HMS FMP to establish specific reference points for PBF to guide science-based management of the stock. Outside of the scope of the petition for rulemaking, CBD requested that NMFS develop recommendations to the Secretary of State and Congress to end PBF overfishing at the international level.

NMFS published a Federal Register document on July 24, 2014 (79 FR 43017), to solicit public comments and information on both the petition for rulemaking and the non-rulemaking requests contained in CBD's letter. NMFS specifically requested that the public provide comments on the social, economic, and biological impacts from implementing any of the petitioner's requests to assist NMFS in its evaluation and in determining what rulemaking action(s), if any, were appropriate.

NMFS received 29 written comments, 2 emails, and 431 individually submitted electronic comments via the Federal e-Rulemaking Portal. CBD submitted several electronic comments with 23,826 identical form letters attached. The majority of distinct comments came from the recreational fishing community, especially sportfishing anglers, while some came from the commercial passenger fishing vessel (CPFV) industry. Of the individually submitted comments, 323 included rationales for opposing a prohibition on fishing for PBF. Additionally, 253 of the individually submitted comments included suggestions for alternative management measures. A small minority of the public comments received expressed their support for banning fishing for PBF in both U.S. waters and the high seas. NMFS considered each of the comments in the analysis of CBD's petition.

Following NMFS' determination that the petition for rulemaking in CBD's letter contained enough information to enable NMFS to effectively consider the substance of the petition (79 FR 43017, July 24, 2014), NMFS evaluated the petitioner's requests with regard to achieving the management and conservation objectives of ending overfishing and rebuilding the PBF stock. PBF is a trans-Pacific stock that is harvested by fishing vessels of many different nations. PBF catch by U.S. West Coast fisheries has constituted approximately 2 percent of the Pacific-wide catch in recent years (2008-2014) (ISC, 2015).When NMFS received the petition from CBD, it had already notified (in a letter dated April 8, 2013) the Pacific Council of its duties under section 304(i) of the MSA, 16 U.S.C. 1854(i), received a response from the Pacific Council (dated April 1, 2014), and engaged with the Council in developing both international and domestic measures to reduce fishing mortality and aid in rebuilding the PBF stock. These measures are described in NMFS' response to the petition, which is summarized below. At this time, NMFS views the Pacific Council's recommendations and adopted measures as sufficient to fulfill international and domestic obligations to conserve the PBF stock and address the relative impact of U.S. vessels. However, given the role of the Pacific Council in MSA rulemakings and amendments to the HMS FMP, NMFS refers the specific requests related to domestic fisheries management (i.e., requests 1 and 2 below), as well as NMFS input on these matters, to the Pacific Council for further consideration. A more detailed response to the petition, as well as access to public comments, is available via the Federal eRulemaking Portal: http://www.regulations.gov, identified by “NOAA-NMFS-2014-0076.”

Petition Request 1: CBD requested that NMFS add PBF to the list of prohibited species in the HMS FMP due to the depleted status of the stock. CBD contended that doing so would be symbolically powerful and would have little to no economic impact on U.S. fishermen.

Response to Request 1: There is little evidence to suggest that a unilateral prohibition on the retention of PBF by U.S. West Coast fishermen will either end overfishing or have a consequential impact on reducing overfishing because catch of PBF by U.S. West Coast-based fleets represents a small portion of the total Pacific-wide catch. However, it is clear to NMFS that such a prohibition would economically harm both U.S. West Coast commercial and recreational fisheries and fishing communities. PBF is a marketable species and is economically important to U.S. West Coast fishermen who target highly migratory species. The commercial coastal purse seine fleet opportunistically targets PBF when they are in the U.S. exclusive economic zone (EEZ). While the primary targets for this fleet are small coastal pelagic species, such as Pacific sardine, Pacific mackerel, and market squid, PBF is part of their historical and current fishing portfolio. PBF are also incidentally caught in the commercial large-mesh drift gillnet (DGN) fishery, the albacore surface hook-and-line fishery, and the deep-set longline fishery. For the directed fishing fleet (purse seiners), revenue from PBF alone constitutes about 2 to 4 percent of the total revenue from fishing. For the DGN fleet, the annual average PBF revenue share is about 3 percent. Despite the fact that U.S. West Coast-based sport fishermen are not permitted to sell their catch, other positive regional economic impacts generated by recreational fishing activities, including personal enjoyment of and willingness to pay for recreational fishing, could be negatively impacted by prohibiting all retention of PBF by U.S. vessels.

As part of their biennial management process, the Pacific Council considered impacts to recreational fisheries when adopting measures under MSA section 304(i) to address the relative impact of U.S. fisheries on the PBF stock. During deliberations, the Pacific Council considered how allowing anglers to catch and retain PBF might affect decisions to take recreational fishing trips. Specifically, the Pacific Council considered an analysis of the potential impacts of recreational bag and possession limit reductions. This analysis was based on CPFV logbook data from the 2008 to 2013 fishing seasons and included estimates for economic and employment losses due to a moratorium on U.S. West Coast-based PBF retention (e.g., reducing the current PBF bag limit from 10 to 0 fish). The analysis has become part of a Southwest Fisheries Science Center Working Paper, which includes estimated losses of up to $13.8 million in annual trip expenditures and $25.8 million in annual gross sales for southern California due to a decrease in the number of CPFV trips that target PBF (5,275 angler days in U.S. waters and 56,338 angler days in Mexico waters). Additionally, the 0-bag limit scenario was estimated to generate a potential employment loss in the southern California economy of up to 178 full-time equivalent jobs (Stohs, 2016).

NMFS regards the United States' continued participation in the international decision-making processes of the two regional fishery management organizations (RFMOs)—the Inter-American Tropical Tuna Commission (IATTC) and the Western and Central Pacific Fisheries Commission (WCPFC)—as critical to effectively ending overfishing of PBF and rebuilding the Pacific-wide stock. Other nations have not indicated they would follow suit if the United States were to unilaterally impose a moratorium on PBF retention. NMFS will continue to work with the U.S. Delegations to the two RFMOs to garner consensus from other PBF fishing nations to achieve far greater reductions in total fishing mortality than the reductions that could be achieved by prohibiting retention for the relatively small-scale U.S. fisheries alone. Further, NMFS will continue to work with the Pacific Council to adopt and implement, if necessary, additional management measures to address the relative impacts of the U.S. fleet.

Petition Alternative Request 1: As an alternative to a prohibition on the retention of PBF, CBD requested that NMFS establish annual catch limits (ACLs) and a permanent minimum size limit for protecting age class 1 and 2 PBF. CBD requested implementation of ACLs, if not a total prohibition on retention, which it asserts is a necessary step towards achieving the conservation objective of ending overfishing and rebuilding the PBF stock.

Response to Alternative Request 1: NMFS does not agree with CBD's assertion that applying ACL requirements to the U.S. portion of the PBF catch limit would lead to ending overfishing. NMFS has already imposed PBF catch limits for U.S. commercial fisheries in the eastern Pacific Ocean (EPO) under the Tuna Conventions Act. Imposing additional catch limits under the authority of MSA would inflict additional costs on U.S. industry for little conservation gain. Further, the Pacific Council did not adopt ACLs for PBF because it is a transboundary stock under international management, and as such is exempt from ACL requirements (see paragraph (h)(2)(ii) of the National Standard 1 guidelines at 50 CFR 600.310).

NMFS considers CBD's request for a recreational size limit to mean that any PBF of age class 1 or 2 caught by U.S. anglers would have to be released. Unlike catch or retention limits, a size limit regulation is less likely to prohibit or deter targeting of PBF. Maunder and Aires-da-Silva (2014) argue that unless a fishery can completely control its selectivity, or unless released fish have a high survival rate, it is very difficult to implement and evaluate the effects of a minimum size limit. Given the current gear used and the nature of fishing for PBF in the EPO, NMFS is not convinced, at this time, that size limits would be an effective management tool for recreational fisheries that catch PBF in the EPO, or that they would be accepted by the IATTC and other PBF fishing nations.

Lastly, NMFS shares CBD's interest in ending overfishing and is pleased to report progress on the adoption and implementation of meaningful measures to both aid in the rebuilding of the PBF stock and to address the relative impacts of the U.S. fleet. In October 2014, the IATTC adopted Resolution C-14-06 (Measures for the Conservation and Management of Pacific Bluefin Tuna in the Eastern Pacific Ocean, 2015-2016), which included a 40 percent reduction in the commercial catch limits for 2015 and 2016 compared to the 2014 level. NMFS published a rule to implement these catch limits for the U.S. commercial sector on July 8, 2015 (80 FR 38986). On July 28, 2015, NMFS implemented a reduction in the daily PBF bag limit from 10 to 2 PBF and a reduction in the maximum multi-day possession limit from 30 to 6 PBF for U.S. West Coast recreational fisheries (80 FR 38986), based on the Pacific Council's recommendation. NMFS estimates that this action will result in an approximately 30 percent reduction in U.S. recreational catch. These reductions in commercial and recreational catch of PBF are consistent with IATTC scientific staff advice.

Petition Request 2: CBD requested that NMFS amend the HMS FMP to establish specific values for reference points, such as maximum fishing mortality threshold (MFMT) and the minimum stock size threshold (MSST), for PBF. CBD asserted that specific values are essential to science-based management, and that “[t]he lack of specific values for PBF reference points has already crippled scientists' ability to provide conservation advice.”

Response to Request 2: NMFS agrees with CBD that reference points assist in science-based management. Given the availability of subsequent years of PBF stock assessments, continued work to evaluate reference points, and the Pacific Council's upcoming biennial management cycle, NMFS encourages the Council to consider the adequacy of the FMP reference points and/or proxies for the PBF stock. As described in paragraph (b)(2)(iv) of the National Standard 1 guidelines, reference points include status determination criteria (SDC) such as MFMT and MSST or their proxies, maximum sustainable yield (MSY), acceptable biological catch (ABC), and ACL. As discussed earlier, because PBF is an internationally assessed and managed stock and meets the international exemption criteria of the National Standard 1 guidelines, an ABC and ACL was not included in the HMS FMP. However, the HMS FMP includes SDC and an estimate for MSY based on a mean of stock-wide catches from 1995 to 1999. The reference points of the HMS FMP are considered guideposts for managing the PBF stock and require being able to determine and monitor the effects of fishing. Nonetheless, the effects of fishing are often difficult to determine for HMS species like PBF. For example, trends in catch and effort may reflect more than abundance (e.g., fishing success may be affected by schooling behavior and/or environmental effects on the availability of species). Though SDC are included in the HMS FMP, specific values for MFMT and MSST have not been identified for PBF. Rather, NMFS uses these guideposts in concert with other available biological reference points to evaluate the status of the PBF stock.

NMFS determined stock status conditions of PBF based on the stock assessments of the International Scientific Committee for Tuna and Tuna-like Species in the North Pacific (ISC) (e.g., 78 FR 41033, July 9, 2013; 80 FR 12621, March 10, 2015), the primary scientific body that routinely conducts stock assessments on temperate tuna and tuna-like species for the North Pacific. Its PBF Working Group (PBFWG) is responsible for conducting PBF stock assessments; it annually reports on stock status and provides conservation advice. Despite the fact that reference points have not yet been adopted by the IATTC or the WCPFC, the PBFWG routinely reports stock size and fishing mortality relative to a range of biological reference points (e.g., ISC, 2014). NMFS considers these PBF assessments to be the best scientific information available for determining PBF stock status under the MSA and for notifying the respective Councils of their responsibilities under MSA section 304(i). NMFS works with the Pacific Council to ensure that results of international assessments and status updates for management unit stocks of the HMS FMP, including PBF, are routinely made available to the public in the Stock Assessment and Fishery Evaluation reports.

Ideally, there would be continuity in reference points used for international and domestic management of fishing on the PBF stock. However, the Pacific Council and NMFS are not required to adopt reference points that are identical to the reference points adopted by the IATTC or WCPFC. Further, the lack of internationally agreed upon reference points for PBF should not preclude the Pacific Council from developing or refining reference points and/or proxies in accordance with National Standard 1.

Request 3 (not part of the petition for rulemaking): Aside from the petition for rulemaking discussed above, CBD also cited section 304(i) of the MSA and requested that NMFS develop and submit recommendations to the Secretary of State and Congress for international actions that will end overfishing in the fishery and rebuild the PBF stock. Specifically, CBD provided the following recommendations: (1) Establish a high seas moratorium on all fishing, (2) implement a Pacific-wide minimum size for PBF catch; and (3) achieve a steep reduction in PBF quota for all countries to meet rebuilding targets that are based on established reference points. NMFS addresses each of these topics below.

Response to Request 3: This request was not a part of CBD's petition for rulemaking under the MSA, and therefore is not being referred to the Pacific Council for further consideration. Nonetheless, NMFS found merit in certain aspects of CBD's request for additional international recommendations. NMFS' response to these additional requests is included below.

First, section 304(i)(2)(B) of the MSA, cited by CBD, requires the appropriate fishery management councils, and not NMFS,1 to develop recommendations to the Secretary of State and Congress to end overfishing and rebuild overfished stocks. As stated earlier, the Pacific Council had already provided their recommendations for international actions to NMFS on April 1, 2014, thereby addressing their obligations under section 304(i)(2)(B) of the MSA. NMFS acted on the Council's recommendations when providing support to the U.S. Delegations for both the IATTC and WCPFC.

As for CBD's requests for NMFS to make specific recommendations to Congress and the State Department, NMFS is not convinced at this time that either closing the high seas to fishing or establishing size limits for PBF would be effective management tools for rebuilding the PBF stock or serving national interests. The conservation benefits of closing the high seas to fishing, at least in terms of changes in total catch, will likely be determined by the degree of movement of targeted species, as well as the mobility of vessels and opportunities to exploit the stock in alternative areas (Davies et al., 2012). Furthermore, most of the commercial catches of PBF in the EPO are taken by purse seiners and nearly all of those catches have not been made on the high seas; instead, most have occurred west of Baja California and California, within about 100 nautical miles of the coast, between about 23° N. and 35° N. (IATTC, 2014). Similarly, most of the recreational PBF catch occurs in the EEZs of Mexico and the United States. In the western Pacific Ocean, PBF is primarily caught from Taiwan to Hokkaido, with troll, purse seine, trap, drift net, and other gear in coastal or nearshore areas. Pacific-wide catches of PBF on the high seas are primarily taken by the longline fleets of Japan, Korea, and Chinese Taipei. However, these fleets catch small amounts of PBF on the high seas in comparison to catches from other fishing grounds (Bayliff, 2000; ISC, 2015).

Lastly, NMFS remains committed to working with the U.S. Delegations to the IATTC and WCPFC to promote Pacific-wide conservation and management measures, a rebuilding plan, and a long-term management framework with appropriate and compatible reference points. As previously mentioned, both RFMOs adopted (and NMFS implemented) more restrictive measures for 2015 and 2016 than in previous resolutions. The ISC evaluated these measures in the context of future stock assessments, spawning stock biomass projections, and progress towards the provisional multi-annual rebuilding plan for PBF adopted by the WCPFC. The United States submitted a proposal to the 89th Meeting of the IATTC to aid in establishing a rebuilding plan for PBF that includes a paragraph about establishing reference points and harvest control rules for the long term management of PBF. The United States also submitted a proposal for a rebuilding plan and a proposal for a precautionary management framework for PBF to the 11th Meeting of the Northern Committee, which is a subsidiary body of the WCPFC that develops recommendations for PBF management measures. These proposals can be found here: https://www.wcpfc.int/system/files/NC11-DP-03%20%28PBF%20rebuilding%20plan%29.pdf (IATTC proposal) and https://www.wcpfc.int/meetings/11th-regular-session-northern-committee (Northern Committee proposals). While neither proposal was adopted, the United States plans to submit proposals intended to contribute to the rebuilding of the stock at the upcoming IATTC and Northern Committee meetings in 2016.