Federal Register Vol. 81, No.122,

Table of Contents I. Background; Statutory Authority II. Discussion III. Opportunities for Public Participation IV. Public Comment Analysis V. Regulatory Flexibility Certification VI. Regulatory Analysis VII. Backfitting and Issue Finality VIII. Plain Writing IX. National Environmental Policy Act X. Paperwork Reduction Act XI. Congressional Review Act XII. Voluntary Consensus Standards XIII. Availability of Guidance XIV. Availability of Documents I. Background; Statutory Authority

The NRC's fee regulations are primarily governed by two laws: (1) The Independent Offices Appropriations Act of 1952 (IOAA) (31 U.S.C. 9701), and (2) OBRA-90. The OBRA-90 statute requires the NRC to recover approximately 90 percent of its budget authority through fees; this fee-recovery requirement excludes amounts appropriated for Waste Incidental to Reprocessing, generic homeland security activities, and Inspector General (IG) services for the Defense Nuclear Facilities Safety Board, as well as any amounts appropriated from the Nuclear Waste Fund. The OBRA-90 statute first requires the NRC to use its IOAA authority to collect user fees for NRC work that provides specific benefits to identifiable applicants and licensees (such as licensing work, inspections, special projects). The regulations at part 170 of title 10 of the Code of Federal Regulations (10 CFR) authorize these fees. But, because the NRC's fee recovery under the IOAA (10 CFR part 170) does not equal 90 percent of the NRC's budget authority, the NRC also assesses generic “annual fees” under 10 CFR part 171 to recover the remaining fees necessary to achieve OBRA-90's 90-percent fee recovery. These annual fees recover regulatory costs that are not otherwise collected through 10 CFR part 170.

The NRC is issuing the FY 2016 final fee rule based on the Consolidated Appropriations Act, 2016 (Pub. L. 114-113), amount of $1,002.1 million, which is a decrease of $13.2 million from FY 2015. As explained previously, certain portions of the NRC's total budget are excluded from the NRC's fee-recovery amount—specifically, these exclusions include: $1.3 million for waste-incidental-to-reprocessing activities, $1.0 million for IG services for the Defense Nuclear Facilities Safety Board, and $18.8 million for generic homeland security activities. Additionally, 10 percent of the NRC's budget is recovered through a congressional appropriation. After accounting for the OBRA-90 exclusions, this 10-percent appropriation, and net billing adjustments—i.e., the sum of unpaid current year invoices (estimated) minus payments for prior year invoices and the prior year billing credit issued to the U.S. Department of Energy (DOE) for the transportation fee class—the NRC must collect $883.4 million in FY 2016 from its licensees. Of this amount, the NRC will recover $332.7 million through 10 CFR part 170 user fees, and the remaining $550.7 million through 10 CFR part 171 annual fees. Table I summarizes the fee-recovery amounts for the FY 2016 final fee rule using the enacted budget, and taking into account excluded activities, the 10-percent appropriation, and net billing adjustments (individual values may not sum to totals due to rounding).

The NRC uses an hourly rate to assess fees for specific services provided by the NRC under 10 CFR part 170. The hourly rate also helps determine flat fees (which are used for the review of certain types of license applications). For FY 2016, the NRC's hourly rate is $265, a decrease of $3 from the hourly rate in the FY 2015 final rule. This rate is applicable to all activities for which fees are assessed under §§ 170.21 and 170.31.

The NRC derives its hourly rate by dividing the sum of recoverable budgeted resources for: (1) Mission-direct program salaries and benefits; (2) mission-indirect program support; and 3) agency support—which includes corporate support, office support (FY 2015 only), and the IG. In FY 2016, the agency eliminated the office support category for budgetary resources. Created in FY 2011, office support included indirect resources that sustained an individual office—such as supervisory, administrative assistant, and other support staff FTE hours. In FY 2015, the agency contracted with E&Y (formerly Ernst and Young) to study the NRC's budget structure in comparison with peer agencies. Based on E&Y's recommendations (and starting in FY 2016), the NRC reclassified resources formerly budgeted in office support into either mission-indirect program support or corporate support, depending upon whether the resources were budgeted in support of a program office or a corporate support office.

The mission-direct FTE hours are the product of the mission-direct FTE multiplied by the estimated annual hours per direct FTE. The only budgeted resources excluded from the hourly rate are those for contract activities related to mission-direct and fee-relief activities. Billable contract activities are included as a separate line item on the 10 CFR part 170 invoice.

The hourly rate decrease is the result of an increase in estimated direct hours worked per mission-direct full-time equivalent (FTE) during the year and reduced budget. The FY 2016 estimated annual direct hours per staff is 1,440 hours, which is up from 1,420 hours in FY 2015. Assuming a constant budget, as the FTE hours per staff increases, the hourly rate decreases. Table II shows the hourly rate calculation methodology. The FY 2015 amounts are provided for comparison purposes.

The NRC amends the flat application fees that it charges to applicants for import and export licenses, applicants for materials licenses and other regulatory services, and holders of materials, import, and export licenses in its schedule of fees in §§ 170.21 and 170.31 to reflect the revised hourly rate of $265. The NRC calculates these flat fees by multiplying the average professional staff hours needed to process the licensing actions by the professional hourly rate for FY 2016. The NRC analyzes the actual hours spent performing licensing actions and then estimates the average professional staff hours that are needed to process licensing actions as part of its biennial review of fees, which is required by Section 902 of the Chief Financial Officers Act of 1990 (31 U.S.C. 902(8)). The NRC performed this review in FY 2015 and will perform this review again in FY 2017. The lower hourly rate of $265 is the primary reason for the decrease in application fees.

The NRC rounds these flat fees in such a way that ensures both convenience for its stakeholders and that any rounding effects are minimal. Accordingly, fees under $1,000 are rounded to the nearest $10, fees between $1,000 and $100,000 are rounded to the nearest $100, and fees greater than $100,000 are rounded to the nearest $1,000.

The licensing flat fees are applicable for import and export licensing actions (see fee categories K.1. through K.5. of § 170.21), as well as certain materials licensing actions (see fee categories 1.C. through 1.D., 2.B. through 2.F., 3.A. through 3.S., 4.B. through 5.A., 6.A. through 9.D., 10.B., 15.A. through 15.L., 15.R., and 16 of § 170.31). Applications filed on or after the effective date of the FY 2016 final fee rule will be subject to the revised fees in the final rule.

As previously noted, Congress provides 10 percent of the NRC's recoverable budget authority through an appropriation. The NRC applies this 10-percent congressional appropriation to offset certain budgeted activities—see Table III for a full listing. These activities are referred to as “fee-relief” activities. Any difference between the 10-percent appropriation and the budgeted amount of these fee-relief activities results in a fee adjustment (either an increase or decrease) to all licensees' annual fees, based on their percentage share of the NRC's budget.

In FY 2016, the NRC's budgeted fee-relief activities fall below the 10-percent appropriation threshold—therefore, the NRC assessed a fee-relief credit to decrease all licensees' annual fees based on their percentage share of the budget. Table III summarizes the fee-relief activities for FY 2016. The FY 2015 amounts are provided for comparison purposes.

Table IV shows how the NRC allocates the −$0.1 million fee-relief adjustment (credit) to each license fee class.

In addition to the fee-relief adjustment, the NRC also assessed a generic LLW surcharge of $3.3 million. Disposal of LLW occurs at commercially operated LLW disposal facilities that are licensed by either the NRC or an Agreement State. There are three existing low-level waste disposal facilities in the United States that accept various types of low-level waste. All are in Agreement States. The NRC allocates this surcharge to its licensees based on data available in DOE's Manifest Information Management System. This database contains information on total LLW volumes and NRC usage information from four generator classes: Academic, industry, medical, and utility. The ratio of utility waste volumes to total LLW volumes over a period of time is used to estimate the portion of this surcharge that should be allocated to the power reactors, fuel facilities, and materials fee classes. The materials portion is adjusted to account for the fact that a large percentage of materials licensees are licensed by the Agreement States rather than the NRC.

Table IV shows the surcharge, and its allocation across the various fee classes.

In accordance with SECY-05-0164, “Annual Fee Calculation Method,” dated September 15, 2005 (ADAMS Accession No. ML052580332), the NRC rebaselines its annual fees every year. Rebaselining entails analyzing the budget in detail and then allocating the budgeted costs to various classes or subclasses of licensees. It also includes updating the number of NRC licensees in its fee calculation methodology.

The NRC revised its annual fees in §§ 171.15 and 171.16 to recover approximately 90 percent of the NRC's FY 2016 budget authority (less non-fee amounts and the amount to be recovered through 10 CFR part 170 fees). The total 10 CFR part 170 collections for this final rule are $332.7 million, an increase of $11.0 million from the FY 2015 fee rule. The NRC, therefore, must recover approximately $550.7 million through annual fees from its licensees, which is a decrease of $16.3 million from the FY 2015 final rule.

Table V shows the rebaselined fees for FY 2016 for a representative list of categories of licensees. The FY 2015 amounts are provided for comparison purposes.

The work papers (ADAMS Accession No. ML16161A886) that support this final rule show in detail how the NRC allocated the budgeted resources for each class of licenses and how the fees are calculated. The work papers are available as indicated in Section XIV, “Availability of Documents.”

Paragraphs a. through h. of this section describe budgetary resources allocated to each class of licensees and the calculations of the rebaselined fees. For more information about detailed fee calculations for each class, please consult the accompanying work papers.

The NRC will collect $31.6 million in annual fees from the fuel facility class.

In FY 2016, the fuel facilities budgetary resources decreased due to continued construction delays at multiple sites, which caused delays in NRC operational readiness reviews and NRC inspections. These delays further caused the estimated 10 CFR part 170 billings for FY 2016 to remain stable compared to FY 2015. Specifically, significant construction delays are noted for the Mixed Oxide Fuel Fabrication Facility, the International Isotopes facility, and the AREVA NC facility.

As for the annual fees, the NRC allocates annual fees to individual fuel facility licensees based on the effort/fee determination matrix developed in the FY 1999 final fee rule (64 FR 31447; June 10, 1999). To briefly recap, that matrix groups licensees into various categories. The NRC's fuel facility project managers determine the effort levels associated with regulating each category. This is done by assigning separate effort factors for the safety and safeguards activities associated with each category (for more information about this matrix, see the work papers). These effort levels are reflected in Table VII.

For FY 2016, the total budgeted resources for safety activities are $16.2 million. To calculate the annual fee, the NRC allocates this amount to each fee category based on its percent of the total regulatory effort for safety activities. Similarly, the NRC allocates the budgeted resources for safeguards activities ($13.7 million) to each fee category based on its percent of the total regulatory effort for safeguards activities. Finally, the fuel facility fee class' portion of the fee-relief adjustment/LLW surcharge—$1.7 million—is allocated to each fee category based on its percent of the total regulatory effort for both safety and safeguards activities. The annual fee per licensee is then calculated by dividing the total allocated budgeted resources for the fee category by the number of licensees in that fee category. The fee for each facility is summarized in Table VIII.

The NRC will collect $0.9 million in annual fees from the uranium recovery facilities fee class, a small decrease from FY 2015.

The budgetary resources for uranium recovery increased due to additional work expected for the Uranerz Energy-Jane Doe and Strata Energy-Kenderick expansions, increased inspection activities for Strata Energy-Ross (a new licensee to fleet), and increased hearing activities. Although—in comparison to FY 2015—the total required amount for annual fee recovery decreased, annual fees for this fee class increased because there are less licensees paying annual fees in FY 2016 (two licensees, Moore Ranch and Crownpoint, were not included in the calculation for annual fees because they were licensed but not constructed and, per current NRC policy, are not required to pay annual fees).

The NRC computes the annual fee for the uranium recovery fee class by dividing the total annual fee recovery amount among DOE and the other licensees in this fee class. The annual fee increase for fee categories 2.A.(2)(a-c), 2.A.(4), and 2.A.(5) is mainly due to the increase in budgetary resources for increased hearing activities and a reduction in the number of licensees over which to spread the budget. The NRC regulates DOE's Title I and Title II activities under UMTRCA.1 The annual fee assesses to DOE the costs specifically budgeted for the NRC's UMTRCA Title I and II activities, as well as 10 percent of the remaining budgeted costs for this fee class. The DOE's UMTRCA annual fee decreased because of an increase in estimated 10 CFR part 170 billings for DOE's UMTRCA site at Monument Valley. This decrease caused the total overall fee recovery amount to decrease for this fee class. The NRC assesses the remaining 90 percent of its budgeted costs to the rest of the licensees in this fee class, as described in the work papers. This is reflected in Table X as follows:

Further, for the non-DOE licensees, the NRC continues to use a matrix to determine the effort levels associated with conducting the generic regulatory actions for the different (non-DOE) licensees in this fee class; this is similar to NRC's approach for fuel facilities, described previously.

The matrix methodology for uranium recovery licensees first identifies the licensee categories included within this fee class (excluding DOE). These categories are: Conventional uranium mills and heap leach facilities; uranium In Situ Recovery (ISR) and resin ISR facilities; mill tailings disposal facilities; and uranium water treatment facilities. The matrix identifies the types of operating activities that support and benefit these licensees, along with each activity's relative weight (for more information, see the work papers). Table XI displays the benefit factors per licensee and per fee category, for each of the non-DOE fee categories included in the uranium recovery fee class as follows:

Applying these factors to the approximately $369,571 in budgeted costs to be recovered from non-DOE uranium recovery licensees results in the total annual fees for each fee category. The annual fee per licensee is calculated by dividing the total allocated budgeted resources for the fee category by the number of licensees in that fee category, as summarized in Table XII.

The NRC will collect $465.9 million in annual fees from the power reactor fee class in FY 2016, as shown in Table XIII. The FY 2015 values and percentage change are shown for comparison.

In comparison to FY 2015, the operating power reactors budgetary resources decreased in FY 2016 due to a decrease in the budgeted activities for new-reactor activities. This decrease is attributable to delays in application submittals and a slowdown in requests for design certification renewal and construction permits. Accordingly, the FY 2016 operating power reactor annual fee decreased. In addition to decreased budgetary resources, an additional licensee (Watts Bar) was added to the operating fleet. This increases the number of licensees paying this annual fee, which also, in turn, lowers annual fees compared to FY 2015.

Compared with FY 2015, 10 CFR part 170 estimated billings increased due to the design certification work for APR1400 Korea Hydro.

The recoverable budgeted costs are divided equally among the 100 licensed power reactors resulting in an annual fee of $4,659,000 per reactor. Additionally, each licensed power reactor is assessed the FY 2016 spent fuel storage/reactor decommissioning annual fee of $197,000 (see the discussion that follows). The combined FY 2016 annual fee for power reactors is, therefore, $4,856,000.

The NRC will collect $24.0 million in annual fees from 10 CFR part 50 power reactors and 10 CFR part 72 licensees who do not hold a 10 CFR part 50 license to collect the budgeted costs for spent fuel storage/reactor decommissioning.

In comparison to FY 2015, the annual fee decreased due to a decline in budgetary resources for rulemaking security guidance and waste research. This decrease is partially offset by the slight increase in 10 CFR part 170 billings, due to work on the consolidated storage facility with Waste Control Specialist and renewal work with Transnuclear. The required annual fee recovery amount is divided equally among 122 licensees, resulting in an FY 2016 annual fee of $197,000 per licensee.

The NRC will collect $0.326 million in annual fees from the research and test reactor licensee class.

In FY 2016, the annual fees decreased due to a decline in contract support for the non-power reactors and an increase in estimated 10 CFR part 170 billings for non-power production and utilization facility applications to produce molybdenum-99. The required annual fee-recovery amount is divided equally among the four research and test reactors subject to annual fees and results in an FY 2016 annual fee of $81,500 for each licensee.

The agency received an application for a rare-earth facility in FY 2015. The NRC has allocated approximately $460,000 in budgeted resources to this fee class. But, because all of these budgetary resources will be recovered through 10 CFR part 170 fees, the NRC will not collect an annual fee in FY 2016 for this fee class.

The NRC will collect $35.0 million in annual fees from materials users licensed under 10 CFR parts 30, 40, and 70.

The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the “2015 Act”) 1 amended the Federal Civil Penalties Inflation Adjustment Act of 1990 (the “Inflation Adjustment Act”) 2 to improve the effectiveness of civil monetary penalties and to maintain their deterrent effect. Prior to the 2015 Act, the Inflation Adjustment Act required federal agencies, including the Commission, to adjust for inflation the civil monetary penalties within their jurisdiction at least once every four years according to detailed formulas. The Commission last adjusted its civil monetary penalties for inflation in 2013. Civil Monetary Penalties Inflation Adjustments, 78 FR 44419 (July 24, 2013). As amended by the 2015 Act, the Inflation Adjustment Act now requires federal agencies to make a one-time “catch-up” adjustment to civil monetary penalties, which must take effect no later than August 1, 2016, and to adjust civil monetary penalties annually thereafter using newly prescribed formulas.3

The Inflation Adjustment Act defines a civil monetary penalty as “any penalty, fine, or other sanction” that (1) “is for a specific amount” or “has a maximum amount” under federal law; and (2) that a federal agency assesses or enforces “pursuant to an administrative proceeding or a civil action” in federal court.4 Under the Federal Election Campaign Act, 52 U.S.C. 30101-46 (“FECA”), the Commission may assess and enforce civil monetary penalties for violations of FECA, the Presidential Election Campaign Fund Act, 26 U.S.C. 9001-13, and the Presidential Primary Matching Payment Account Act, 26 U.S.C. 9031-42. As required by the Inflation Adjustment Act, and pursuant to guidance issued by the Office of Management and Budget,5 the Commission is now making a one-time catch-up adjustment to the civil monetary penalties within its jurisdiction, according to the prescribed formulas. The Commission will implement annual inflation adjustments beginning in January 2017.

As required by the 2015 Act, the Commission is issuing these rules as interim final rules. The interim final rules will take effect on August 1, 2016, the date by which Congress mandated that agencies make their catch-up adjustment effective.

The Administrative Procedure Act's (“APA's”) notice-and-comment requirement does not apply here because Congress specifically directed agencies to make adjustments to civil monetary penalties through an interim final rule.6 Nonetheless, the public may comment on these interim final rules, and the Commission may address any comments received in a later rulemaking document. Furthermore, because the inflation adjustments made through the interim final rules are required by Congress and involve no Commission discretion or policy judgments, these rules do not need to be submitted to the Speaker of the House of Representatives or the President of the Senate under the Congressional Review Act, 5 U.S.C. 801 et seq. Moreover, because the APA's notice-and-comment procedures do not apply to these interim final rules, the Commission is not required to conduct a regulatory flexibility analysis under 5 U.S.C. 603 or 604. See 5 U.S.C. 601(2), 604(a). Nor is the Commission required to submit these revisions for congressional review under FECA. See 5 U.S.C. 30111(d)(1), (4) (providing for congressional review when Commission “prescribe[s]” a “rule of law”). The new penalty amounts will apply to civil monetary penalties that are assessed after the date the increase takes effect, even if the associated violation predated the increase.7

Under the Inflation Adjustment Act, the Commission now must adjust each civil monetary penalty for inflation by applying a cost-of-living-adjustment (“COLA”) ratio. The COLA ratio is the percentage that the consumer price index (“CPI”) 8 for October 2015 exceeds the CPI for October of the “baseline year,” which is the calendar year when the civil monetary penalty was first established, or when it was most recently adjusted under a provision of law other than the Inflation Adjustment Act.9 To calculate the adjusted penalty, the Commission must multiply the civil monetary penalty amount in the baseline year by the COLA ratio.10 The civil monetary penalty, however, may not be increased by more than 150% of the civil monetary penalty amount in effect on November 2, 2015.11

The Commission assesses two types of civil monetary penalties that now must be adjusted for inflation. First are those penalties that are either negotiated by the Commission or imposed by a court for violations of FECA, the Presidential Election Campaign Fund Act, and the Presidential Primary Matching Payment Account Act. These civil monetary penalties are set forth at 11 CFR 111.24. Second are the civil monetary penalties assessed through the Commission's Administrative Fines Program for late filing or non-filing of certain reports required by FECA. See 52 U.S.C. 30109(a)(4)(C) (authorizing Administrative Fines Program), 30104(a) (requiring political committee treasurers to report receipts and disbursements within certain time periods). The penalty schedules for these civil monetary penalties are set out at 11 CFR 111.43 and 111.44.

FECA established the civil monetary penalties for violations of FECA and the other statutes within the Commission's jurisdiction. See 52 U.S.C. 30109(a)(5), (6), (12). Commission regulations in 11 CFR 111.24 provide the current inflation-adjusted amount for each such civil monetary penalty. To calculate the catch-up adjustment for each of the five civil monetary penalties in 11 CFR 111.24, the Commission must first identify the later of: The year the civil monetary penalty was first established, or the year it was last adjusted by law other than under the Inflation Adjustment Act. The Commission then must apply the COLA ratio to the amount of the civil monetary penalty in effect in the baseline year.12

The civil monetary penalties at 11 CFR 111.24(a)(1) and 11 CFR 24(a)(2)(i) were established by statute in 1976.13 The civil monetary penalty at 11 CFR 111.24(a)(2)(ii) was established in 2002.14 The civil monetary penalties at 11 CFR 111.24(b) were established in 1980.15 None of these penalties has been adjusted since its establishment, other than for inflation. Accordingly, as described above, the Commission determines the adjusted penalty amount by multiplying the amount of the penalty in the baseline year by the COLA ratio for that year and rounding that figure to the nearest dollar. But the Commission may not increase the civil monetary penalty amount by more than 150% of the amount that was in effect for that civil monetary penalty on November 2, 2015. Thus, for example, in section 111.24(a)(1), the 2015 civil monetary penalty amount was $7,500. The maximum the new civil monetary penalty can increase by is 150% of that amount, which would be an increase of $11,250, for a maximum penalty of $18,750. Because applying the COLA ratio to the originally established penalty amount would lead to an adjusted penalty of approximately $20,500, which exceeds the 150% cap amount, the new civil monetary penalty for section 111.24(a)(1) is $18,750. The actual adjustment to each civil monetary penalty is shown in the chart below.

FECA authorizes the Commission to assess civil monetary penalties for violations of the reporting requirements of 52 U.S.C. 30104(a) according to the penalty schedules “established and published by the Commission.” 52 U.S.C. 30109(a)(4)(C)(i). The Commission has established two such schedules: The schedule in 11 CFR 111.43(a) applies to reports that are not election sensitive, and the schedule in 11 CFR 111.43(b) applies to reports that are election sensitive.17 Each schedule contains two columns of penalties, one for late-filed reports and one for non-filed reports, with penalties based on the level of financial activity in the report and its lateness (where applicable).18 In addition, 11 CFR 111.43(c) establishes a civil monetary penalty for situations in which a committee fails to file a report and the Commission cannot calculate the relevant level of activity. Finally, 11 CFR 111.44 establishes a civil monetary penalty for failure to file timely reports of contributions received less than 20 days, but more than 48 hours, before an election. See 52 U.S.C. 30104(a)(6).

The Commission established the penalty schedules in 11 CFR 111.43(a) and (b) in 2000, when the Commission promulgated its Administrative Fines program. Administrative Fines, 65 FR 31787, 31796-97 (May 19, 2000) (“2000 Administrative Fines”). In 2003, the Commission adjusted these schedules to reduce certain penalties for political committees with low levels of financial activity. Administrative Fines, 68 FR 12572, 12573 (Mar. 17, 2003) (“2003 Administrative Fines”) (establishing “new schedules that reduce civil money penalties for . . . committees with less than $50,000 in activity”). Other than for inflation, these penalty schedules have not been adjusted since 2003.19 The civil monetary penalties in 11 CFR 111.43(c) and 111.44 were established in 2000 and, except for inflation, have not been adjusted since.20

As described above, to determine the adjusted penalty amount, the Commission first multiplies the amount of the penalty in the baseline year by the COLA ratio for that year and rounds that figure to the nearest dollar. For certain penalties assessed at low levels of financial activity (up to $49,999.99) the baseline year is 2003. 2003 Administrative Fines, 68 FR at 12573-75. For all other penalties, the baseline year is 2000. 2000 Administrative Fines, 65 FR at 31792-98. The adjusted civil monetary penalty for each level of activity is the baseline year penalty amount multiplied by the COLA ratio that is provided in the OMB Memorandum. None of these adjusted civil monetary penalties exceeds the 150% cap. The new civil monetary penalties are shown in the schedules in the revised rule text, below.

For the reasons set out in the preamble, the Federal Election Commission amends subchapter A of chapter I of title 11 of the Code of Federal Regulations as follows:

Authority for This Rulemaking

The FAA's authority to issue rules on 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 III, Section 44701, “General Requirements.” Under that section, the FAA is charged with promoting safe flight of civil aircraft in air commerce by prescribing regulations and minimum standards, for the design and performance of aircraft, that the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority. It prescribes new safety standards for the design and operation of transport category airplanes.

The FAA is amending title 14, Code of Federal Regulations (14 CFR) parts 25, 121, and 129 as described below. The intent of this rule is to prevent fuel tank explosions caused by ignition from external ignition sources of fuel vapor either contained in vapor spaces 1 or exiting from vapor spaces through the fuel tank vent outlets. Potential external ignition sources include, but are not limited to, ground handling equipment, fuel fires that result from refueling spills, or ground fires that follow a survivable crash landing in which the fuel tank and the vent system remain intact. Means to prevent or delay the propagation of flame 2 from external sources into the fuel tank through the fuel tank vent system 3 would also prevent or delay fuel tank explosions following certain accidents. These means include flame arrestors or fuel tank inerting. This prevention or delay would provide additional time for the safe evacuation of passengers from the airplane and for emergency personnel to provide assistance.

This rule applies to applications for new type certificates and applications for amended or supplemental type certificates on significant product-level change projects in which § 25.975, “Fuel tank vents and carburetor vapor vents,” is applicable to a changed area. Additionally, a new operating requirement in both 14 CFR part 121, “Operating Requirements: Domestic, Flag, and Supplemental Operations,” and 14 CFR part 129, “Operations: Foreign Air Carriers and Foreign Operators of U.S.-Registered Aircraft Engaged in Common Carriage,” applies to airplanes that are issued an original airworthiness certificate after a specified date. The FAA is not requiring retrofit of the existing fleet.

Concurrent with the publication of this rule, the FAA is publishing Advisory Circular (AC) 25.975-1 that provides guidance concerning means of compliance with the revised § 25.975.4

This rulemaking addresses the problem of fuel tank explosions caused by flame propagation from fires outside the airplane reaching the fuel tank through the fuel tank vents. Fires outside of the airplane fuel tanks can be caused by ignition of fuel spilled during refueling, fuel and oil spillage from engines that separate from the airplane following an accident, or fuel leaking from damaged airplane fuel tanks. In some cases, external fires have ignited fuel vapors that have exited the fuel tank vents, resulting in flames traveling back through the vent lines into the fuel tank and causing fuel tank explosions. These explosions have caused passenger fatalities and prevented emergency personnel from assisting survivors.

Existing requirements address some ignition sources. Airworthiness standards in § 25.981 for preventing fuel system explosions include requirements to prevent ignition sources inside the fuel tanks caused by failures of airplane components or external heating of the fuel tank walls. The fuel tank venting standards in § 25.975 include requirements to ensure fuel tank structural integrity following failures of the refueling system that could result in overfilling of the fuel tanks, or clogging of the vents due to ice. Section 25.954, “Fuel system lightning protection,” requires that fuel tank vents be designed and arranged to prevent the ignition of fuel vapor within the system by lightning strikes. These regulations, however, do not address the risk posed by flame from external ignition sources entering the fuel tank through the fuel vents.

Most new type designs and transport category airplanes currently in production include flame arrestors or other means to prevent flame propagation through the fuel vent lines into the fuel tanks. However, some models of newly manufactured airplanes produced under older type certificates and introduced into the U.S. fleet do not have a means of preventing fuel tank explosions caused by external ignition sources. In addition, lack of a specific part 25 regulation to address this has resulted in some applicants completing initial airplane designs and applying for a U.S. type certificate without having accounted for the risk of flame propagation through fuel vent lines.

These amendments stem from an industry study of potential post-crash survivability and FAA airworthiness actions in response to accidents that involved fuel tank explosions. The FAA has issued airworthiness directives (ADs) that require flame arrestors, or verification of their functionality, on several airplane models. In 1999, following a review of fuel tank explosions on older designs, the FAA issued an AD 5 mandating incorporation of flame arrestors on Boeing Model 737 airplanes. That AD action eliminated the risk of fuel tank explosions from flames entering the fuel tanks through the fuel tank vents on early models of the Boeing 737. More recently, in 2008, the FAA issued an AD requiring installation of flame arrestors on the Lockheed Model 382.6

The Special Aviation Fire and Explosion Reduction (SAFER) Advisory Committee 7 examined transport category airplane post-crash fires and determined that four fuel tank explosions resulting from post-crash fires could have been avoided if flame arrestors or surge tank explosion suppression systems 8 had been installed in the airplane fuel tank vents.9 The SAFER Committee examined methods of preventing fuel tank explosions following impact in survivable accidents, including controlling the fuel tank flammability using nitrogen inerting systems, using fire suppression systems, and installation of flame arrestors.

The SAFER Committee determined the most practical means of preventing post-crash fuel tank explosions was the use of flame arrestors. Flame arrestors stop the flame from traveling through the fuel tank vents by quenching the flame. Flame arrestors are typically made of numerous small stainless steel passages that remove heat from the flame so it dies out before passing into the fuel tank. This delays propagation of ground fires into the fuel tank and subsequent explosions, providing additional time for the safe evacuation of passengers. The two flame arrestors installed on a typical transport airplane weigh approximately 2 to 4 pounds each.

In 1995, based on the SAFER Committee report, the FAA issued an NPRM entitled, “Fuel System Vent Fire Protection,” (60 FR 6632), dated February 2, 1995. That NPRM proposed to require 5 minutes of fuel tank vent fire protection in new type designs for transport category airplanes, and amend certain operating rules to require retrofit of the existing fleet of transport category airplanes. The FAA received comments on the NPRM that questioned the proposed 5-minute standard and the accuracy of the economic analysis related to the proposed retrofit requirement. Comments also suggested that the FAA should develop additional guidance, in the form of an AC, to provide an acceptable method of qualifying flame arrestors as a means of meeting the proposed requirement.

To address those 1995 comments, the FAA obtained additional cost information from component suppliers, and drafted an AC that included a means of demonstrating compliance. That means of compliance was the installation of fuel tank vent flame arrestors that would prevent propagation of flames through the fuel tank vents into the fuel tanks for a minimum of 2 minutes and 30 seconds. In 2001, the FAA tasked its Aviation Rulemaking Advisory Committee (ARAC) to review a draft final rule, including the FAA's proposed disposition of public comments, and the draft AC. In 2002, due to the ARAC tasking, the FAA published in the Federal Register a notice of withdrawal of the NPRM that had been published in 1995. Because of industry resource issues and FAA rulemaking prioritization activities, however, no work was done on these ARAC taskings. The FAA published a withdrawal of the tasks on June 21, 2004.

As an alternative, the FAA developed a strategy for a number of rulemaking projects that had been tasked to the ARAC. In 2005, the FAA issued a letter 10 to the head of the Transport Airplane and Engine Issues Group describing the agency's intent to use the process under 14 CFR 21.21 of finding an unsafe design feature to address the need to prevent flame propagation through fuel tank vents. Since 2005, the FAA has used issue papers applicable to specific certification projects, which have resulted in the inclusion of flame arrestors in the design of new type certificated airplanes.

Prior to the FAA's issuance of the 2005 letter, however, many manufacturers had followed industry recommendations and voluntarily introduced flame arrestors into their new type designs.

However, some business jets and smaller transport category airplanes do not incorporate flame arrestors or other means to prevent flame propagation into the fuel tanks. Also, some airplanes operating under 14 CFR part 121 do not have such means, including older models like the DC-9 and MD-80, and all DHC-8 turboprops and Canadair Regional Jets, both of which are still in production. This amendment addresses those airplanes.

As discussed in the NPRM, the FAA based the 2 minute and 30 seconds, in part, on previous Aerospace Industries Association (AIA) comments to the NPRM the FAA published in 1995 that proposed a 5-minute standard. AIA stated that flame arrestors in production at that time could not meet the proposed 5-minute standard and that 5 minutes was overly conservative. Based on those comments, the FAA reviewed the capability and the service experience of in-production designs, as well as the conservatism of the flame-holding test methods used for evaluating flame arrestor performance. In 1996, the FAA determined that a 2 minute and 30 second capability allowed flame arrestors in production at that time to provide adequate evacuation and emergency response time. Since that time, under §§ 21.21(b)(2) and 25.601, the FAA has applied issue papers to new type certification projects that approved applicants' proposals to reduce the risk of fuel tank explosions by incorporating flame arrestors with a 2 minute and 30 second delay capability.

The FAA also reviewed other rules related to passenger safety when selecting the delay of 2 minute and 30 seconds for a fuel tank vent protection standard. Section 25.803, “Emergency evacuation,” sets a performance-based standard that, under specified conditions, the airplane must be capable of being evacuated within 90 seconds. The conditions assume the availability of a minimum number of exits and that all passengers are uninjured and physically capable of departing the airplane. However, experience has shown that this is not always the case after an accident, so additional time is needed for passenger evacuation and emergency response.

Section 25.856, “Thermal/Acoustic insulation materials,” sets minimum standards for preventing penetration of a fuel fire through the airplane fuselage, including testing requirements in appendix F of part 25 that require 5 minutes as the minimum burn-through time.11 Studies of past accidents 12 13 show the greatest benefits in evacuating passengers and allowing emergency crews time to arrive are provided with a minimum burn-through time of 5 minutes. However, flame arrestors that meet a 5-minute standard would need to be significantly larger and heavier than a flame arrestor meeting the 2 minute and 30 second standard. Such arrestors could also require changes to the fuel system vent lines in order to meet airplane refueling performance requirements, resulting in additional cost. Therefore, a minimum standard of 2 minutes and 30 seconds is appropriate for preventing the propagation of flames from outside the tank through the fuel tank vents into fuel tank vapor spaces.

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all GE GE90-76B, GE90-77B, GE90-85B, GE90-90B, and GE90-94B turbofan engines. The NPRM published in the Federal Register on January 13, 2016 (81 FR 1582). The NPRM was prompted by an uncontained failure of the HPC stage 8-10 spool, leading to an airplane fire. The NPRM proposed to require ECIs or USIs of the HPC stage 8-10 spool and removing from service those parts that fail inspection. We are issuing this AD to prevent failure of the HPC stage 8-10 spool, uncontained rotor release, damage to the engine, and damage to the airplane.

We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM (81 FR 1582, January 13, 2016) and the FAA's response to each comment.

The Air Line Pilots Association expressed support for the NPRM (81 FR 1582, January 13, 2016).

British Airways, United Airlines, and The Boeing Company commented that HPC stage 8-10 spool, part numbers (P/Ns) 1844M90G01 and 1844M90G02 are not required in the Applicability paragraph of this AD. They noted that the associated AD 2015-27-01, (81 FR 1291, January 12, 2016) and the precipitating event involved only HPC stage 8-10 spool, P/N 1694M80G04.

We disagree. HPC stage 8-10 spool P/Ns 1844M90G01 and 1844M90G02 are susceptible to the same failure mode as HPC stage 8-10 spool, P/N 1694M80G04. However, we acknowledge that the one-time inspection is not needed for the majority of HPC stage 8-10 spool P/Ns 1844M90G01 and 1844M90G02. Therefore, we revised paragraph (e)(1) of this AD to apply to only specific serial numbers (S/Ns) of P/Ns 1844M90G01 and 1844M90G02 for the one-time inspection.

British Airways requested that we clarify if a repetitive on-wing inspection is required. They reasoned that the service information lists the on-wing inspection as one time only.

We disagree. Paragraph (e)(1) of this AD mandates that specific parts be inspected prior to a cycle limit. This initial inspection may be performed on wing using USI or at shop visit using ECI. Repetitive inspections prior to shop visit are not mandated, however we acknowledge that GE has commented that they should be performed. We did not change this AD.

GE requested that we remove the repetitive shop visit inspection from the Compliance section of this AD and instead mandate that the airworthiness limitations section (ALS) of the engine manual include the repetitive inspections. They also requested that the Summary section and Related Information section of this AD be revised to reflect this change. They reasoned that this will allow a terminating action for this AD.

We disagree. At this time we do not feel that a change to the ALS is appropriate as root cause has not been determined. We did not change this AD.

GE requested that we clarify that the installation prohibition does not apply to new parts. They stated that new parts do not need to be inspected prior to installation. The inspections are only applicable to parts that have been used in service.

We agree. We revised paragraph (f) of this AD to specify that inspections are only required for parts that have been used in service.

GE and British Airways requested that we revise the Related Service Information paragraph of this AD to remove the reference to Engine Manual, Chapter 72-00-31, Special Procedure 007 and add a reference to GE GE90 SB 72-1146. They reasoned that the Special Procedure is considered an additional inspection technique and the other inspection procedures listed provide full detection capability of defects in the area of concern.

We disagree. The service information is not incorporated by reference in this AD and was previously included for information purposes only. However, to preclude any confusion on this point, we removed all service information from the Related Information section of this AD.

GE requested that we reduce the applicability for the initial inspection. GE has determined that an older manufacturing process may be a contributor to part failure and that all parts manufactured using this process should be inspected prior to shop visit.

We agree. We revised the applicability of the initial inspection to include all HPC stage 8-10 spool, P/N 1694M80G04, and specific S/Ns of HPC stage 8-10 spool, P/Ns 1844M90G01 and 1844M90G02, that were manufactured using the older process.

GE has requested that the initial USI compliance time be reduced and to add repetitive inspections every 500 cycles until shop visit ECI for the parts manufactured using the older manufacturing process noted above. GE has determined that the smallest detectable flaw using USI with the compressor blades installed is larger than what was used in the prior analysis.

We partially agree. We agree that the USI inspection is not as capable as what was used in the prior analysis. We also agree that a reduced threshold for initial inspection is appropriate. So, we reduced the initial inspection threshold in paragraph (e)(1) of this AD from 10,500 cycles to 9,000 cycles and removed USI as an option for the inspections in paragraph (e)(2) of this AD. We disagree with including the 500 cycle repetitive inspections; however, repetitive inspections would be a consideration for additional rulemaking.

We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this AD with the changes described previously. We have determined that these minor changes:

• Are consistent with the intent that was proposed in the NPRM (81 FR 1582, January 13, 2016) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM (81 FR 1582, January 13, 2016).

We also determined that these changes will not increase the economic burden on any operator or increase the scope of this AD.

GE is determining the root cause for the unsafe condition identified in this AD. Once a root cause is identified, we will consider additional rulemaking.

We estimate that this AD affects 54 engines installed on airplanes of U.S. registry. We also estimate that it will take about 7 hours per engine to comply with this AD. The average labor rate is $85 per hour. We estimate one part will fail inspection at a cost of $780,000. Based on these figures, we estimate the total cost of this AD to U.S. operators to be $812,130.

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

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

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

For the reasons discussed above, I certify that this AD:

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

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

(3) Will not affect intrastate aviation in Alaska, and

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

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

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 D and Class E airspace at Charlottesville-Albemarle Airport, Charlottesville, VA.

On March 28, 2016, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to amend Class D airspace, Class E Surface Area Airspace, Class E Airspace Designated as an Extension to a Class D, and Class E airspace extending upward from 700 feet above the surface at Charlottesville-Albemarle Airport, Charlottesville, VA (81 FR 17118). The Azalea Park NDB has been decommissioned requiring airspace reconfiguration at the airport. This action also to updates the geographic coordinates of the airport and University of Virginia Medical Center Heliport, and eliminates the NOTAM information that reads, “This Class E airspace area is effective during the specific dates and time established in advance by Notice to Airmen. The effective date and time will thereafter be continuously published in the Airport/Facility Directory” from the regulatory text of the Class E airspace designated as an extension to Class D at Charlottesville-Albemarle Airport, Charlottesville, VA. 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 D and E airspace designations are published in paragraphs 5000, 6002, 6004, and 6005, respectively, 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 D and 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 amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 amends Class D airspace, Class E Surface Area Airspace, Class E Airspace Designated as an Extension to a Class D, and Class E airspace extending upward from 700 feet above the surface at Charlottesville-Albemarle Airport, Charlottesville, VA. The Azalea Park NDB has been decommissioned requiring airspace reconfiguration at the airport. This action also updates the geographic coordinates of the airport and University of Virginia Medical Center Heliport, and eliminates the NOTAM information that reads, “This Class E airspace area is effective during the specific dates and time established in advance by Notice to Airmen. The effective date and time will thereafter be continuously published in the Airport/Facility Directory” from the regulatory text of the Class E airspace designated as an extension to Class D at Charlottesville-Albemarle Airport, Charlottesville, VA.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. 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:

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 establishes controlled airspace at Lisbon Municipal Airport, Lisbon, ND.

On February 17, 2016, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to establish Class E Airspace in the Lisbon, ND area. (81 FR 8026) Docket No. FAA-2015-5800. 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 amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 establishes Class E airspace extending upward from 700 feet above the surface within a 6.5-mile radius of Lisbon Municipal Airport, Lisbon, ND, to accommodate new RNAV standard instrument approach procedures. Controlled airspace is needed for the safety and management of IFR operations at the airport.

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 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

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

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

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

Background

Over the past several years, one of our highest priorities has been to improve the efficiency of our hearing process for the Old Age, Survivors, and Disability Insurance (OASDI) programs under title II of the Social Security Act (Act) and the Supplemental Security Income (SSI) program under title XVI of the Act. We began a pilot program in July 2010 (75 FR 39154), under which the agency, rather than the ALJ, may set the time and place of the hearing under certain circumstances. Because we expect to continue to face significant challenges in dealing with the historically large number of hearing requests, we must maintain programs and policies that can provide us with the flexibility we need to improve the efficiency of our hearing process.

When we published a final rule on July 8, 2010, authorizing the agency to set the time and place for a hearing before an ALJ, we explained that we would implement our authority as a temporary pilot program. (75 FR 39154). Therefore, we included in sections 404.936(h) and 416.1436(h) of the final rule a provision that the pilot program would end on August 9, 2013, unless we decided to either terminate the program earlier, or extend it beyond that date by publication of a final rule in the Federal Register. Most recently, on July 2, 2015, we extended the expiration date until August 12, 2016. (80 FR 37970).

During the pilot program, we tracked ALJ productivity closely, working with ALJs to addresss any concerns about our hearing process. We are continuing to work with ALJs who do not promptly schedule their hearings, and we are using a variety of authorties available to correct these situations. To date, our efforts have been largely successful. We are retaining this authority in our regulations to provide us with the flexibility we need to manage the hearing process appropriately.

During this extension of the pilot program, we will continue to monitor the productivity of ALJs and to work with our ALJs to address any concerns regarding our hearing process. Accordingly, we are extending our authority to set the time and place for a hearing before an ALJ for another year, until August 11, 2017. As before, we reserve the authority to end the program earlier, or to extend it by publishing a final rule in the Federal Register.

We follow the Administrative Procedure Act (APA) rulemaking procedures specified in 5 U.S.C. 553 when developing regulations. (Section 702(a)(5) of the Social Security Act, 42 U.S.C. 902(a)(5)). Generally, the APA requires that an agency provide prior notice and opportunity for public comment before issuing a final rule. The APA provides exceptions to its notice and public comment procedures when an agency finds there is good cause for dispensing with such procedures because they are impracticable, unnecessary, or contrary to the public interest. We have determined that good cause exists for dispensing with the notice and public comment procedures for this rule. (5 U.S.C. 553(b)(3)(B)). This final rule only extends the date on which the pilot program will no longer be effective. It makes no substantive changes to our rules. Our current regulations expressly provide that we may extend the expiration date of the pilot program by notice of a final rule in the Federal Register. Therefore, we have determined that opportunity for prior comment is unnecessary, and we are issuing this rule as a final rule.

In addition, for the reasons cited above, we find good cause for dispensing with the 30-day delay in the effective date of this final rule. (5 U.S.C. 553(d)(3)). We are not making any substantive changes in our rules. Without an extension of the expiration date for the pilot program, we will not have the flexibility we need to ensure the efficiency of our hearing process. Therefore, we find it is in the public interest to make this final rule effective on the publication date.

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

We certify that this final rule will not have a significant economic impact on a substantial number of small entities because it affects individuals only. Therefore, the Regulatory Flexibility Act, as amended, does not require us to prepare a regulatory flexibility analysis.

These rules do not create any new or affect any existing collections and, therefore, do not require Office of Management and Budget approval under the Paperwork Reduction Act.

For the reasons stated in the preamble, we are amending subpart J of part 404 and subpart N of part 416 of title 20 of the Code of Federal Regulations as set forth below:

The Coast Guard will enforce the special local regulation for the North Charleston Fireworks Display in 33 CFR 100.701 Table 1 from 8:45 p.m. through 10:15 p.m. on July 4, 2016.

On July 4, 2016, South Carolina; The City of North Charleston is sponsoring the North Charleston Fireworks on the Charleston Harbor, South Carolina.

Under the provisions of 33 CFR 100.701, all persons and vessels are prohibited from entering the regulated areas unless permission to enter has been granted by the Captain of the Port Charleston or designated representatives. This action is to provide enforcement action of regulated area that will encompass portions of the navigable waterways. Spectator vessels may safely transit outside the regulated areas, but may not anchor, block, loiter in, or impede the transit of official patrol vessels. The Coast Guard may be assisted by other Federal, State, or local law enforcement agencies in enforcing these regulations.

This notice of enforcement is issued under authority of 33 CFR 100.701 and 5 U.S.C. 552(a).

The Coast Guard will provide notice of the regulated area by Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives. If the COTP Charleston determines that the regulated area need not be enforced for the full duration stated in this publication, he or she may use a Broadcast Notice to Mariners to grant general permission to enter the regulated area.

On March 3, 2016, the Coast Guard received a marine event application for the 2016 Beaufort Water Festival Air Show that will take place from noon to 5 p.m. on July 23, 2016. In response, on May 16, 2016, the Coast Guard published a notice of proposed rulemaking titled Special Local Regulation; Beaufort Water Festival, Beaufort, SC. There we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to this special local regulation. During the comment period that ended June 15, 2016, we received no comments.

The legal basis for the rule is the Coast Guard's authority to establish special local regulations: 33 U.S.C. 1233. The purpose of the rule is to insure safety of life on navigable waters of the United States during Beaufort Water Festival Air Show.

As noted above, we received no comments on our NPRM published May 16, 2016. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM. On July 23, 2016 from noon to 5 p.m. Approximately 100 spectator vessels are expected to attend the event. Persons and vessels desiring to enter, transit through, anchor in, or remain within the regulated area may contact the Captain of the Port Charleston by telephone at (843) 740-7050, or a designated representative via VHF radio on channel 16, to request authorization. If authorization to enter, transit through, anchor in, or remain within the regulated area is granted by the Captain of the Port Charleston or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port Charleston or a designated representative. The Coast Guard will provide notice of the special local regulation by Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.

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 rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.

The economic impact of this rule is not significant for the following reasons: (1) The special local regulations will be enforced for only five hours; (2) although persons and vessels will not be able to enter, transit through, anchor, or remain within the regulated area without authorization from the Captain of the Port Charleston or a designated representative, they will be able to operate in the surrounding area during the enforcement periods; (3) persons and vessels will still be able to enter, transit through, anchor in, or remain within the regulated area if authorized by the Captain of the Port Charleston or a designated representative; and (4) the Coast Guard will provide advance notification of the regulated area to the local maritime community by Local Notice to Mariners and Broadcast Notice to Mariners.

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 no 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 may affect the following entities, some of which may be small entities: The owner or operators of vessels intending to enter, transit through, anchor in, or remain within the regulated area during the enforcement period. For the reasons discussed in Regulatory Planning and Review section above, this rule will not have a significant economic impact on a substantial number of small entities.

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.

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 issued in conjunction with a regatta or marine parade. This rule 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.

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

The Coast Guard will enforce the special local regulation for the Patriots Point Fireworks Display in 33 CFR 100.701 Table 1 from 8:45 p.m. through 9:45 p.m. on July 4, 2016.

On July 4, 2016, South Carolina; Patriots Point Naval Maritime Museum is sponsoring the Patriots Point Fireworks on the navigable waters of Charleston, South Carolina.

Under the provisions of 33 CFR 100.701, all persons and vessels are prohibited from entering the regulated areas unless permission to enter has been granted by the Captain of the Port Charleston or designated representatives. This action is to provide enforcement action of regulated area that will encompass portions of the navigable waterways. Spectator vessels may safely transit outside the regulated areas, but may not anchor, block, loiter in, or impede the transit of official patrol vessels. The Coast Guard may be assisted by other Federal, State, or local law enforcement agencies in enforcing these regulations.

This notice of enforcement is issued under authority of 33 CFR 100.701 and 5 U.S.C. 552(a). The Coast Guard will provide notice of the regulated area by Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives. If the COTP Charleston determines that the regulated area need not be enforced for the full duration stated in this publication, he or she may use a Broadcast Notice to Mariners to grant general permission to enter the regulated area.

The Coast Guard will enforce the safety zone for the annual Upper Ohio Valley Italian Festival Fireworks listed in 33 CFR 165.801 Table 1, Sector Ohio Valley, No. 15 from 9 p.m. to 10:30 p.m. on July 23, 2016. This safety zone extends from mile 90.0 to 90.5 on the Ohio River in Wheeling, WV. This action is being taken to provide for the safety of life on navigable waterways during the fireworks display. Entry into the safety zone is prohibited unless authorized by the COTP or a designated representative. Persons or vessels desiring to enter into or passage through the safety zone must request permission from the COTP or a designated representative. If permission is granted, all persons and vessels shall comply with the instructions of the COTP or designated representative.

This notice of enforcement is issued under authority of 33 CFR 165.801 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 Local Notice to Mariners and updates via Marine Information Broadcasts.

The Coast Guard will enforce the safety zones listed in 33 CFR 165.118 on the specified dates and times as indicated in Table 1 below. This regulation was published in the Federal Register on November 8, 2013 (78 FR 67028).

This notice is issued under authority of 33 CFR 165.118 and 5 U.S.C. 552 (a). In addition to this notice in the Federal Register, the Coast Guard will provide notification of these enforcement periods via the Local Notice to Mariners and Broadcast Notice to Mariners.

The Coast Guard will enforce the Safety Zone for the annual Wheeling Heritage Port Sternwheel Festival Fireworks listed in 33 CFR 165.801 Table 1, Sector Ohio Valley, No. 60, from 10 p.m. to 11:30 p.m. on September 17, 2016. This safety zone extends from mile 90.2 to 90.7 on the Ohio River in Wheeling, WV. This action is being taken to provide for the safety of life on navigable waterways during the fireworks display. Entry into the safety zone is prohibited unless authorized by the COTP or a designated representative. Persons or vessels desiring to enter into or passage through the safety zone must request permission from the COTP or a designated representative. If permission is granted, all persons and vessels shall comply with the instructions of the COTP or designated representative.

This notice of enforcement is issued under authority of 33 CFR 165.801 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 Local Notice to Mariners and updates via Marine Information Broadcasts.

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2015-0420 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before August 23, 2016. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2015-0420, by one of the following methods:

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

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

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

Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

In the Federal Register of August 26, 2015 ([80] FR 51759) (FRL-9931-74), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide tolerance petition (PP [4F8317]) by LidoChem, Inc., 20 Village Ct., Hazlet, NJ 07730. The petition requested that 40 CFR part 180 be amended by establishing an exemption from the requirement of a tolerance for residues of Bacillus amyloliquefaciens strain PTA-4838. That document referenced a summary of the petition prepared by the petitioner LidoChem, Inc., which is available in the docket, http://www.regulations.gov. There were no comments received in response to the notice of filing.

Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Pursuant to FFDCA section 408(c)(2)(B), in establishing or maintaining in effect an exemption from the requirement of a tolerance, EPA must take into account the factors set forth in FFDCA section 408(b)(2)(C), which require EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .” Additionally, FFDCA section 408(b)(2)(D) requires that the Agency consider “available information concerning the cumulative effects of a particular pesticide's residues” and “other substances that have a common mechanism of toxicity.”

EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. First, EPA determines the toxicity of pesticides. Second, EPA examines exposure to the pesticide through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings.

Consistent with FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness and reliability, and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

Bacillus amyloliquefaciens is a gram positive non-pathogenic bacterium which is commonly found in the air, water, soil, and on plants. Bacillus amyloliquefaciens is ubiquitous in the environment, especially in soils and agricultural environments all over the world.

Bacillus amyloliquefaciens was previously classified as Bacillus subtilis var. amyloliquefaciens. (Ref 1). B. subtilis var. amyloliquefaciens is used to produce proteolytic enzymes for laundry detergents, is used in broiler feed as a probiotic, and produces chitinase, protease, and lipases which suppress fungi and nematodes. It has also been reported as having plant growth regulator activity. Bacillus subtilis sp. are known to cause spoilage in dough, and are rarely found to cause food poisoning (Ref. 2).

Between 1990-1996 ten different foods have been associated with B. subtilis foodborne illness outbreaks, other infrequent cases have been reported as well (Ref. 3), but no reported foodborne illnesses have been associated with Bacillus amyloliquefaciens or Bacillus amyloliquefaciens PTA-4838. Bacillus amyloliquefaciens infections have only been associated with amylosin producing strains and presence of other pathogens isolated from indoor dust in water damaged buildings (Ref. 3), and infections have not been associated with any dietary consumption. The production of amylosin has not been reported with Bacillus amyloliquefaciens PTA-4838 strain, and the acute pulmonary toxicity pathogenicity studies show no signs of toxicity or pathogenicity for this strain. Thus, Bacillus amyloliquefaciens PTA-4838 strain is not considered a risk for infection.

Acute oral, pulmonary, and injection toxicity/pathogenicity testing of Bacillus amyloliquefaciens strain PTA-4838 has shown that it is not toxic or pathogenic. Specific information on the studies received and other available information concerning potential effects of Bacillus amyloliquefaciens strain PTA-4838 can be found at http://www.regulations.gov in the document titled “Registration Decision for the New Active Ingredient Bacillus amyloliquefaciens strain PTA-4838” in this docket ID number EPA-HQ-OPP-2015-0420. (Ref. 4).

As no adverse effects have been observed in the available data for Bacillus amyloliquefaciens strain PTA-4838, the Agency has not identified any points of departure for conducting a quantitative assessment of Bacillus amyloliquefaciens strain PTA-4838. Consequently, the Agency conducted a qualitative assessment.

In examining aggregate exposure, FFDCA section 408 directs EPA to consider available information concerning exposures from the pesticide residue in food and all other non-occupational exposures, including drinking water from ground water or surface water and exposure through pesticide use in gardens, lawns, or buildings (residential and other indoor uses).

1. Food. Bacillus amyloliquefaciens is ubiquitous in the environment, especially in soils and agricultural environments, so dietary exposure to background levels of the naturally occurring microbe are already occurring. B. subtilis and B. amyloliquefaciens are considered GRAS food additives and the FDA has estimated that dietary exposure of B. subtilis and B. amyloliquefaciens by the U.S. population is 200 mg/day (Ref. 5). Similar Bacillus subtilis strains are used in the production of food grade products and in fermented foods in Japan and Thailand. Dietary exposure via crop residues from pesticidal uses will be much lower based on maximum application rates. Further, the product containing Bacillus amyloliquefaciens PTA-4848 is not toxic or pathogenic and is not expected to cause adverse health effects, and has not been connected to any illnesses.

2. Drinking water exposure. Bacillus amyloliquefaciens is naturally present in soils; therefore, Bacillus amyloliquefaciens may occur in surface water and possibly groundwater. According to the World Health Organization, Bacillus species are often detected in drinking water even after going through acceptable water treatment processes, mostly because the spores are resistant to municipal water treatment measures. Should this microbial pesticide be present, no adverse effects are expected from exposure to Bacillus amyloliquefaciens through drinking water (Ref. 6), based on the results outlined in the Toxicological Profile Section.

The pesticide use of Bacillus amyloliquefaciens PTA-4838 except during application right before harvest, as proposed, does not increase in a significant way the potential for non-dietary, non-occupational exposure to its residues for the general population, including infants and children, because Bacillus amyloliquefaciens is ubiquitous in the environment and because populations have been previously exposed to background levels of the microbe. Children are not expected to have any incidental exposure at levels above what they are naturally exposed to already. Human exposure to Bacillus subtilis and Bacillus amyloliquefaciens in food grade products or fermented foods have not resulted in any reports of infection. As previously mentioned Bacillus subtilis and Bacillus amyloliquefaciens dietary exposure is reported as 200 mg/per person per day in the U.S. (Ref. 5). Any additional exposure to Bacillus amyloliquefaciens PTA-4838 resulting from residues from pesticidal use and residential homeowner applications will not result in additional aggregate non occupational risk, since no acute oral, pulmonary, and injection toxicity or pathogenicity hazard exists.

Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

B. amyloliquefaciens strain PTA-4838 does not share a common mechanism of toxicity with any other substances, since it is not toxic via the oral, dermal, or inhalation routes of exposure. For the purposes of this tolerance action, therefore, EPA has assumed that Bacillus amyloliquefaciens strain PTA-4838 does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at http://www.epa.gov/pesticides/cumulative.

Although there is likely to be dietary and non-occupational exposure to Bacillus amyloliquefaciens strain PTA-4838, the Agency concludes that there is reasonable certainty that no harm will result to the U.S. population, including infants and children, from aggregate exposure to residues of Bacillus amyloliquefaciens strain PTA-4838 because of the lack of any toxicity, infectivity, and pathogenicity of this microbe. This includes all anticipated dietary exposures and all other exposures for which there is reliable information.

FFDCA section 408(b)(2)(C) provides that the EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure, unless the EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the Food Quality Protection Act Safety Factor. In applying this provision, the EPA either retains the default value of 10X or uses a different additional safety factor when reliable data available to the EPA support the choice of a different factor.

As discussed above, EPA has concluded that Bacillus amyloliquefaciens strain PTA-4838 is not toxic, pathogenic, or infective to mammals, including infants and children. Because there are no threshold levels of concern to infants, children, and adults when Bacillus amyloliquefaciens strain PTA-4838 is used according to label directions and good agricultural practices, EPA concludes that no additional margin of safety is necessary to protect infants and children.

An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation.

Therefore, an exemption is established for residues of Bacillus amyloliquefaciens strain PTA-4838 on all food commodities.

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

Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the exemption in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), do not apply.

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

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

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

Therefore, 40 CFR chapter I is amended as follows:

I. Authorization of Revisions to South Dakota's Hazardous Waste Program A. Why are revisions to State programs necessary?

States which have received final authorization from the EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the federal program. As the federal program changes, states must change their programs and ask the EPA to authorize the changes. Changes to state programs may be necessary when federal or state statutory or regulatory authority is modified or when certain other changes occur. Most commonly, states must change their programs because of changes to the EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 268, 270, 273 and 279. When states make other changes to their regulations, it is often appropriate for the states to seek authorization for the changes.

We conclude that South Dakota's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we grant South Dakota final authorization to operate its hazardous waste program with the changes described in the authorization application. South Dakota has responsibility for permitting Treatment, Storage, and Disposal Facilities (TSDFs), and for carrying out the aspects of the RCRA program described in its revised program application, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA), for all areas within the State, except for (1) all lands located within formal Indian Reservations within or abutting the State of South Dakota, including the Cheyenne River Indian Reservation, Crow Creek Indian Reservation, Flandreau Indian Reservation, Lower Brule Indian Reservation, Pine Ridge Indian Reservation, Rosebud Indian Reservation, Standing Rock Indian Reservation, Yankton Indian Reservation; (2) any land held in trust by the United States for an Indian tribe; and (3) any other land, whether on or off a reservation that qualifies as “Indian country” within the meaning of 18 U.S.C. 1151. New federal requirements and prohibitions imposed by federal regulations that the EPA promulgates under the authority of HSWA take effect in authorized states before they are authorized for the requirements. Thus, the EPA will implement those requirements and prohibitions in South Dakota, including issuing permits, until South Dakota is authorized to do so.

The effect of this decision is that a facility in South Dakota subject to RCRA will have to comply with the authorized State requirements instead of the equivalent federal requirements in order to comply with RCRA. South Dakota has enforcement responsibilities under its State hazardous waste program for violations of such program, but the EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, authority to:

• Conduct inspections and require monitoring, tests, analyses, or reports;

• Enforce RCRA requirements; suspend or revoke permits; and,

• Take enforcement actions regardless of whether South Dakota has taken its own actions.

This action does not impose additional requirements on the regulated community because the regulations for which South Dakota is being authorized by this direct action are already effective under State law and are not changed by this action.

The EPA is publishing this rule without a prior proposal because we view this as a noncontroversial action and anticipate no adverse comment. However, in the “Proposed Rules” section of this Federal Register, we are publishing a separate document that will serve as the proposed rule to authorize the State program changes if adverse comments are received on this direct final rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information about commenting on this rule, see the ADDRESSES section of this document.

If the EPA receives comments that oppose this authorization, we will address all public comments in a later Federal Register. You will not have another opportunity to comment, therefore, if you want to comment on this action, you must do so at this time.

South Dakota initially received final authorization on October 19, 1984, effective November 2, 1984 (49 FR 41038) to implement the RCRA hazardous waste management program. We granted authorization for changes to their program on: April 17, 1991, effective June 17, 1991 (56 FR 15503); September 8, 1993, effective November 8, 1993 (FR 47216); January 10, 1994, effective March 11, 1994 (59 FR 1275); July 24, 1996, effective September 23, 1996 (61 FR 38392); May 9, 2000, effective June 8, 2000 (65 FR 26755); April 23, 2004, effective May 24, 2004 (69 FR 21962); March 8, 2006, effective March 8, 2006 (71 FR 11533); and August 8, 2012, effective August 8, 2012 (77 FR 47302).

South Dakota submitted a final complete program revision application on May 12, 2015, seeking authorization of their changes in accordance with 40 CFR 271.21. We now make an immediate final decision, subject to receipt of written comments that oppose this action, that South Dakota's hazardous waste program revision satisfies all of the requirements necessary to qualify for Final authorization. Therefore, we grant South Dakota final authorization for the following program changes:

The State of South Dakota revisions consist of regulations which specifically govern Federal hazardous waste revisions promulgated from July 1, 2007 through June 30, 2012 (RCRA Clusters XVIII-XXII), except for the final rules published on January 2, 2008 (73 FR 57; Checklist 216), October 30, 2008 (73 FR 64668, Checklist 219); December 19, 2008 (73 FR 77954, Checklist 221); January 8, 2010 (75 FR 1236, Checklist 222); and June 15, 2010 (75 FR 33712, Checklist 224). The State requirements from its Hazardous Waste Rules, Administrative Rules of South Dakota (ARSD), Article 74:28, effective October 10, 2013, are included in the chart below.

South Dakota has made amendments to its regulations that are not directly related to any of the federal rules addressed in Item G.1 above. These State-initiated changes are either conforming changes made to existing authorized provisions, or the adoption of provisions that clarify and make the State's regulations internally consistent. The State's regulations, as amended by these provisions, provide authority which remains equivalent to and no less stringent than the federal laws and regulations. These State-initiated changes are submitted under the requirements of 40 CFR 271.21(a) and include the following provisions from the Administrative Rules of South Dakota (ARSD 74:28), as amended, effective October 10, 2013: 74:28:21:01(1), 74:28:21:01(3), 74:28:21:01(6), 74:28:21:01(8), 74:28:21:01(11), 74:28:25:03, 74:28:25:04, 74:28:25:05, 74:28:28:03, 74:28:28:04, 74:28:28:05, and 74:36:11.01.

South Dakota incorporates the Federal regulations by reference, thus making its hazardous waste program equivalent to the federal program in all areas. The State did not make any changes that are more stringent or broader-in-scope than the federal rules in this rulemaking. In addition, South Dakota did not change any previously more stringent or broader-in-scope provisions to be equivalent to the federal rules.

EPA will continue to implement certain federal requirements that the EPA cannot delegate to States. The requirements include: (1) Certain provisions in 40 CFR 261.39(a)(5) and 261.41 part 262, subparts E, F and H, part 263, subpart B, §§ 264.12(a)(2), 264.71(a)(3), 264.71(d), 265.12(a)(2), 265.71(a)(3), and 265.71(d) regarding governmental oversight of exports and imports of hazardous waste; (2) manifest registry functions in 40 CFR parts 262, Subpart B; (3) 268.5, 268.6, 268.42(b), and 268.44(a)-(g) regarding land disposal restrictions; and (4) 279.82(b) regarding State petitions to allow use of used oil as a dust suppressant.

South Dakota will issue permits for all the provisions for which it is authorized and will administer the permits it issues. The EPA will continue to administer any RCRA hazardous waste permits or portions of permits which were issued prior to the effective date of this authorization until South Dakota has equivalent instruments in place. We will not issue any new permits or new portions of permits for the provisions listed in the Table in this document after the effective date of this authorization. The EPA will continue to implement and issue permits for HSWA requirements for which South Dakota is not yet authorized.

This determination to approve South Dakota's RCRA program revisions applies to all activities in South Dakota outside of “Indian country,” as that term is defined in 18 U.S.C. 1151, including:

1. All lands within the exterior boundaries of the following Indian reservations located within or abutting the State of South Dakota:

a. Cheyenne River Indian Reservation;

b. Crow Creek Indian Reservation;

c. Flandreau Indian Reservation;

d. Lower Brule Indian Reservation;

e. Pine Ridge Indian Reservation;

f. Rosebud Indian Reservation;

g. Standing Rock Indian Reservation;

h. Yankton Indian Reservation;

2. Any land held in trust by the United States for an Indian tribe; and,

3. Any other areas which are “Indian country” within the meaning of 18 U.S.C. 1151.

Under principles of Federal Indian law, states generally do not have authority to regulate in Indian country. Ala. v. Native Vill. of Venetie Tribal Gov't., 522 U.S. 520 n.1 (1998). Accordingly, in the absence of an express grant of authority to a state from Congress, EPA typically excludes Indian country from program delegations and authorizations to states. See RCRA Authorization regulations at 40 CFR 271.1(h) (“[I]n many cases States will lack authority to regulate activities on Indian lands.”).

Indian country is defined by federal statute, 18 U.S.C. 1151, as:

a. All land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation;

b. all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state; and

c. all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.

It is important to note that the phrase “notwithstanding the issuance of any patent” in 18 U.S.C. 1151(a) has been interpreted by the U.S. Supreme Court to include fee patents (also known as land titles or land deeds) issued to Indians and non-Indians alike. See, Seymour v. Superintendent, 368 U.S. 351, 358 (1962). Accordingly, fee-owned lands, whether owned by Indians or nonmembers of the relevant Indian tribe, which are within the exterior boundaries of Indian reservations, are Indian country. While 18 U.S.C. 1151 on its face relates to criminal jurisdiction, the U.S. Supreme Court has held that it is also relevant for civil regulatory jurisdiction. See, DeCoteau v. Dist. County Court, 420 U.S. 425, 427 n.2 (1975).

In addition, tribal trust lands located outside of formal reservations are also Indian country as defined in 18 U.S.C. 1151. For a detailed legal discussion and explanation of this interpretation of Indian country, see Letter from Jack W. McGraw, Acting Regional Administrator, United States Environmental Agency, to Steven M. Pirner, Secretary, South Dakota Department of Environment and Natural Resources (April 2, 2002), printed in 67 FR 45684 through 45687 (July 10, 2002).

Codification is the process of including the statutes and regulations that comprise the State's authorized hazardous waste management program into the CFR. Section 3006(b) of RCRA, as amended, allows the Environmental Protection Agency (EPA) to authorize State hazardous waste management programs. The State regulations authorized by the EPA supplant the federal regulations concerning the same matter with the result that after authorization EPA enforces the authorized regulations. Infrequently, State statutory language which acts to regulate a matter is also authorized by the EPA with the consequence that the EPA enforces the authorized statutory provision. The EPA does not authorize State enforcement authorities and does not authorize State procedural requirements. The EPA codifies the authorized State program in 40 CFR part 272 and incorporates by reference State statutes and regulations that make up the approved program which is federally enforceable in accordance with Sections 3007, 3008, 3013, and 7003 of RCRA, 42 U.S.C. 6927, 6928, 6934 and 6973, and any other applicable statutory and regulatory provisions.

The EPA incorporated by reference South Dakota's then authorized hazardous waste program effective March 8, 2006 (71 FR 11533). In this action, the EPA is revising Subpart QQ of 40 CFR part 272 to include the authorization revision actions described in this document.

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 South Dakota rules described in the amendments to 40 CFR part 272 set forth below. The EPA has made, and will continue to make, these documents available electronically through http://www.regulations.gov and in hard copy at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).

This action codifies the EPA's authorization of South Dakota's base hazardous waste management program and its revisions to that program. The codification reflects the State program that would be in effect at the time EPA's authorized revisions to the South Dakota hazardous waste management program addressed in this direct final rule become final. This action does not reopen any decision the EPA previously made concerning the authorization of the State's hazardous waste management program. The EPA is not requesting comments on its decisions published in the Federal Register documents referenced in Section I.F of this preamble concerning revisions to the authorized program in South Dakota.

The EPA is incorporating by reference EPA's approval of South Dakota's hazardous waste management program by amending Subpart QQ to 40 CFR part 272. The action amends section 272.2101 and incorporates by reference South Dakota's authorized hazardous waste regulations, as amended effective October 10, 2013. Section 272.2101 also references the demonstration of adequate enforcement authority, including procedural and enforcement provisions, which provide the legal basis for the State's implementation of the hazardous waste management program. In addition, section 272.2101 references the Memorandum of Agreement, the Attorney General's Statements and the Program Description, which are evaluated as part of the approval process of the hazardous waste management program in accordance with Subtitle C of RCRA.

The EPA retains the authority under statutory provisions, including but not limited to, RCRA sections 3007, 3008, 3013 and 7003, and other applicable statutory and regulatory provisions to undertake inspections and enforcement actions and to issue orders in all authorized states. With respect to enforcement actions, the EPA will rely on federal sanctions, federal inspection authorities, and federal procedures rather than the State analogs to these provisions. Therefore, the EPA is not incorporating by reference South Dakota's inspection and enforcement authorities nor are those authorities part of South Dakota's approved State program which operates in lieu of the federal program. 40 CFR 272.2101(c)(2) lists these authorities for informational purposes, and because the EPA also considered them in determining the adequacy of South Dakota's procedural and enforcement authorities. South Dakota's authority to inspect and enforce the State's hazardous waste management program requirements continues to operate independently under State law.

The public is reminded that some provisions of South Dakota's hazardous waste management program are not part of the federally authorized State program. These non-authorized provisions include:

(1) Provisions that are not part of the RCRA subtitle C program because they are “broader in scope” than RCRA subtitle C (see 40 CFR 271.1(i));

(2) Federal rules for which South Dakota is not authorized, but which have been incorporated into the State regulations because of the way the State adopted federal regulations by reference.

(3) Federal rules for which South Dakota is authorized but which were vacated by the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Cir. No. 98-1379 and 98-1379; June 27, 2014).

(4) State procedural and enforcement authorities which are necessary to establish the ability of the State's program to enforce compliance but which do not supplant the Federal statutory enforcement and procedural authorities.

State provisions that are “broader in scope” than the federal program are not incorporated by reference in 40 CFR part 272. For reference and clarity, the EPA lists in 40 CFR 272.2101(c)(3) the South Dakota statutory provisions which are “broader in scope” than the federal program and which are not part of the authorized program being incorporated by reference. While “broader in scope” provisions are not part of the authorized program and cannot be enforced by the EPA, the State may enforce such provisions under State law.

South Dakota has adopted but is not authorized for certain federal final rules published between June 29, 1995 and June 15, 2010. Therefore, the federal amendments to 40 CFR parts 260, 261, 262, 263, 264, 265, 266, 268, 270 and 273 addressed by these Federal rules and included in South Dakota's adoption by reference at ARSD, sections 74:28:21:02, 74:28:22:01, 74:28:23:01, 74:28:24:01, 74:28:25:01, 74:28:28:01, 74:28:27:01, 74:28:30:01, 74:28:26:01 and 74:28:33:01, respectively, are not part of the State's authorized program included in this codification. The EPA has identified in 40 CFR 272.2101(c)(4) those federal regulations which, while adopted by South Dakota, are not authorized by EPA.

With respect to any requirement(s) pursuant to HSWA for which the State has not yet been authorized, and which the EPA has identified as taking effect immediately in States with authorized hazardous waste management programs, EPA will enforce those Federal HSWA standards until the State is authorized for those provisions.

The codification does not affect Federal HSWA requirements for which the State is not authorized. The EPA has authority to implement HSWA requirements in all states, including states with authorized hazardous waste management programs, until the states become authorized for such requirements or prohibitions, unless the EPA has identified the HSWA requirement(s) as an optional or as a less stringent requirement of the federal program. A HSWA requirement or prohibition, unless identified by the EPA as optional or as less stringent, supersedes any less stringent or inconsistent State provision which may have been previously authorized by EPA (50 FR 28702, July 15, 1985).

Some existing State requirements may be similar to the HSWA requirements implemented by the EPA. However, until the EPA authorizes those State requirements, EPA enforces the HSWA requirements and not the State analogs.

The Office of Management and Budget (OMB) has exempted this action from the requirements of Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011). Therefore this action is not subject to review by OMB. This action authorizes and codifies State requirements for the purpose of RCRA 3006 and imposes no additional requirements beyond those imposed by State law. Accordingly, I certify that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this action authorizes and codifies pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it 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). For the same reason, this action also does not significantly or uniquely affect the communities of Tribal governments, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely authorizes and codifies State requirements as part of the State RCRA hazardous waste program without altering the relationship or the distribution of power and responsibilities established by RCRA. This action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant and it does not make decisions based on environmental health or safety risks. 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.

Under RCRA 3006(b), EPA grants a State's application for authorization as long as the State meets the criteria required by RCRA. It would thus be inconsistent with applicable law for the EPA, when it reviews a State authorization application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. 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. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, the EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. The EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). Executive Order 12898 (59 FR 7629, Feb. 16, 1994) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. Because this rule authorizes pre-existing State rules which are at least equivalent to, and no less stringent than existing federal requirements, and imposes no additional requirements beyond those imposed by State law, and there are no anticipated significant adverse human health or environmental effects, the rule is not subject to Executive Order 12898.

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 document 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 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). This action will be effective August 23, 2016.

For the reasons set forth in the preamble, under the authority at 42 U.S.C. 6912(a), 6926, and 6974(b), EPA is granting final authorization under 40 CFR part 271 to the State of South Dakota for revisions to its hazardous waste program under the Resource Conservation and Recovery Act and is amending 40 CFR part 272 as follows:

I. Authorization of Revisions to Wyoming's Hazardous Waste Program A. Why are revisions to State programs necessary?

States which have received final authorization from EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal program. As the Federal program changes, states must change their programs and ask the EPA to authorize the changes. Changes to state programs may be necessary when Federal or state statutory or regulatory authority is modified or when certain other changes occur. Most commonly, states must change their programs because of changes to EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 268, 270, 273 and 279. When states make other changes to their regulations, it is often appropriate for the states to seek authorization for the changes.

We conclude that Wyoming's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we grant Wyoming final authorization to operate its hazardous waste program with the changes described in the authorization application. Wyoming has responsibility for permitting Treatment, Storage, and Disposal Facilities (TSDFs), and for carrying out the aspects of the RCRA program described in its revised program application, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA), for all areas within the State, except for “Indian country” as defined in 18 U.S.C. 1151.

New Federal requirements and prohibitions imposed by Federal regulations that the EPA promulgates under the authority of HSWA take effect in authorized states before they are authorized for the requirements. Thus, the EPA will implement those requirements and prohibitions in Wyoming, including issuing permits, until Wyoming is authorized to do so.

The effect of this decision is that a facility in Wyoming subject to RCRA will have to comply with the authorized State requirements instead of the equivalent Federal requirements in order to comply with RCRA. Wyoming has enforcement responsibilities under its State hazardous waste program for violations of such program, but the EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, authority to:

• Conduct inspections and require monitoring, tests, analyses, or reports;

• Enforce RCRA requirements; suspend or revoke permits; and,

• Take enforcement actions regardless of whether Wyoming has taken its own actions.

This action does not impose additional requirements on the regulated community because the regulations for which Wyoming is being authorized by this direct action are already effective under State law and are not changed by this action.

The EPA is publishing this rule without a prior proposal because we view this as a noncontroversial action and anticipate no adverse comment. However, in the “Proposed Rules” section of this Federal Register, we are publishing a separate document that will serve as the proposed rule to authorize the State program changes if adverse comments are received on this direct final rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information about commenting on this rule, see the ADDRESSES section of this document.

If the EPA receives comments that oppose this authorization, we will address all public comments in a later Federal Register. You will not have another opportunity to comment, therefore, if you want to comment on this action, you must do so at this time.

Wyoming initially received final authorization on October 4, 1995, effective October 18, 1995 (60 FR 51925) to implement the RCRA hazardous waste management program. We granted authorization for changes to their program on February 25, 1999, effective August 6, 2001 (56 FR 15503); however, this authorization was subsequently withdrawn on April 23, 1999 (64 FR 19925) and re-issued with the initial effective date of August 6, 2001 (66 FR 40911).

After the 2001 authorization, the State of Wyoming repealed the existing text of the State's hazardous waste regulations and replaced it with text that incorporates by reference the Federal regulations in 40 CFR part 124, subparts A, B, and G, and parts 260 through 268, 270, 273, and 279 in the Wyoming Department of Environmental Quality Hazardous Waste Management Rules, Chapter 1, General Provisions, effective March 18, 2015.

The incorporation by reference (IBR) format for the rules allows the State of Wyoming to provide a more concise, easy to use set of rules that details the differences between the Federal and State rules. The IBR format also shows in detail which Wyoming rules are more stringent than, or broader in scope than, the Federal hazardous waste regulations. The new rules were presented to the Wyoming Water and Waste Advisory Board (WWAB) in July 2014 and the WWAB recommended that the rules package could move forward to the Wyoming Environmental Quality Council (EQC) in September 2014. The State's new rules were presented to the EQC on January 15, 2015, and were approved unanimously by the EQC on the same day. A total of two public notices in June and July 2014 and October through December 2014 were conducted as part of the State rule-making process. The rules were finalized for the purposes of State adoption on March 31, 2015. Wyoming has adopted Federal rules promulgated through January 31, 2014 (date certain) in Title 40 of the Code of Federal Regulations (40 CFR), with the exceptions detailed in its Hazardous Waste Management Rules and Consolidated Checklists submitted by the State as part of its authorization application package. For detailed information regarding the regulatory transition, see the Wyoming Department of Environmental Quality Hazardous Waste Program, Program Description for Revision 6 Request for Reauthorization, dated May 22, 2015, as revised November 24, 2015; specifically, Attachment D: General Correspondence Between Previous State Rules, Current State IBR Rules, and Federal Rules and Attachment E: General Correspondence Between Previous State Rules, Current State IBR Rules and Federal Statutes.

As a result of the State's adoption of the IBR format, Wyoming is seeking reauthorization for the hazardous waste regulatory program administered by the DEQ, as authorized under the Federal Resource Conservation Recovery Act (RCRA), and addressed in the following authorization Federal Register actions: 60 FR 51925 (October 4, 1995) and 66 FR 40911 (August 6, 2001). Wyoming is also seeking authorization for the Federal rule published on February 9, 1995 (60 FR 7824), as amended on April 17, 1995 (60 FR 19165) and May 12, 1995 (60 FR 25619) [Revision Checklist 140]), and specific Federal rules promulgated from March 26, 1996 through January 31, 2014. The State hazardous waste program for which authorization is sought does not include a request for authorization on Indian lands within the State.

Wyoming submitted a final complete program revision application on February 4, 2016, seeking authorization of their changes in accordance with 40 CFR 271.21. We now make an immediate final decision, subject to receipt of written comments that oppose this action that Wyoming's hazardous waste program revision satisfies all of the requirements necessary to qualify for final authorization. Therefore, we grant Wyoming final authorization for the program modifications contained in the State's program revision application, which includes State regulatory changes that are no less stringent than the Federal hazardous waste regulations as they appear in the 40 CFR, revised as of January 31, 2014, except for the final rules published on May 15, 2000 (65 FR 30886; Checklist 186), April 22, 2004 (69 FR 21737, as amended on October 25, 2004 69 FR 62217; Checklist 204); April 4, 2006 (71 FR 16862; Checklist 213); October 30, 2008 (73 FR 64668; Revisions to the Definition of Solid Waste; Checklist 219); and December 19, 2008 (73 FR 77954, Checklist 221). The State requirements from its Department of Environmental Quality Hazardous Waste Rules and Regulations (HWRR), effective March 18, 2015, are included in the chart below.

This rule incorporates an existing class deviation and makes minor administrative changes to EPAAR parts 1536 and 1537. This rule includes the following content changes: (1) Removes 1536.201 Evaluation of contracting performance; (2) provides administrative updates and adds Chief of the Contracting Office (CCO) to 1536.209(c); (3) under 1536.521, updates the term “small purchases” with “simplified acquisition threshold”; (4) under 1537.110(b) the term contracting officer's technical representative(s)” is replaced by Contracting Officer's Representative(s)”; (5) amends 1537.110(c) to incorporate the flexibilities provided by a class deviation to the Key Personnel requirements; and (6) removes “CFR 48” from 1537.110. These changes do not incur any costs, but provide flexibility regarding key personnel commitments.

The EPAAR applies to contractors who have a construction, architect-engineer, or service contract with EPA.

The rule removes the evaluation of contracting performance and incorporate flexibility to identify the required number of days of key personnel commitment during the early stages of contractor performance under the Key Personnel clause. The rule also provides for minor edits of an administrative nature.

EPA published a proposed rule in the Federal Register at 79 FR 47044, August 12, 2014, to remove section 1536.201 on the evaluation of contractor performance under construction contracts and the incorporation of flexibilities provided by a class deviation to the Key Personnel requirements under EPAAR Part 1537. A previous review of the EPAAR, determined that the EPAAR requirement for the evaluation of construction contracts should be removed as it was superseded by FAR 42.1502. Additionally, under EPAAR 1552.237-72, EPA provides contracting officers with the flexibility to identify the required number of days of key personnel commitment during the early stages of contractor performance. The length of time will be based on the requirements of individual acquisitions when continued assignment is essential to the successful implementation of the program's mission. Contracting officers may include a different number of days in excess of the ninety (90) days included in the clause, if approved at one level above the contracting officer. The rule also provides minor administrative edits in the EPAAR sections identified. No comments were received on the previously published proposed rule.

This action is not a “significant regulatory action” under the terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and therefore, not subject to review under the EO.

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. No information is collected under this action.

The Regulatory Flexibility Act generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute; unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impact of this rule on small entities, “small entity” is defined as: (1) A small business that meets the definition of a small business found in the Small Business Act and codified at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. After considering the economic impacts of this rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This action revises a current EPAAR provision and does not impose requirements involving capital investment, implementing procedures, or record keeping. This rule will not have a significant economic impact on small entities.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, Local, and Tribal governments and the private sector. This rule contains no Federal mandates (under the regulatory provisions of the Title II of the UMRA) for State, Local, and Tribal governments or the private sector. The rule imposes no enforceable duty on any State, Local or Tribal governments or the private sector. Thus, the rule is not subject to the requirements of sections 202 and 205 of the UMRA.

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and Local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government as specified in Executive Order 13132.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This rule does not have tribal implications as specified in Executive Order 13175.

Executive Order 13045, entitled “Protection of Children from Environmental Health and Safety Risks” (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is determined to be economically significant as defined under Executive Order 12886, and (2) concerns an environmental health or safety risk that may have a proportionate effect on children. This rule is not subject to Executive Order 13045 because it is not an economically significant rule as defined by Executive Order 12866, and because it does not involve decisions on environmental health or safety risks.

This final rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution or Use” (66 FR 28335, May 22, 2001), because it is not a significant regulatory action under Executive Order 12866.

Section 12(d) (15 U.S.C. 272 note) of NTTA, Public Law 104-113, directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This final rulemaking does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards.

Executive Order 12898 (59 FR 7629, February 16, 1994) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. EPA has determined that this final rulemaking will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. This rulemaking does not involve human health or environmental effects.

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 804 exempts from section 801 the following types of rules (1) rules of particular applicability; (2) rules relating to agency management or personnel; and (3) rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required to submit a rule report regarding this action under section 801 because this is a rule of agency organization, procedure, or practice that does not substantially affect the rights or obligations of non-agency parties.

Therefore, 48 CFR Chapter 15 is amended as set forth below:

I. Background

NASA published a proposed rule in the Federal Register at 81 FR 13308 on March 14, 2016, to amend the NFS to remove references to NASA's Grant and Cooperative Agreement Handbook, NPR 5800.1, NASA Grant and Cooperative Agreement Handbook and Office of Management and Budget (OMB) Circulars A-21 for educational institutions and A-122 for nonprofit organizations.

No public comments were submitted in response to the proposed rule. The proposed rule has been converted to a final rule without change.

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

A final regulatory flexibility analysis has been prepared consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., and is summarized as follows:

NASA is issuing a final rule amending the NFS to remove references to the NASA Grant and Cooperative Agreement Handbook and NPR 5800.1, NASA Grant and Cooperative Agreement Handbook. No changes were made to the final rule. No public comments were received in response to the Initial Regulatory Flexibility Analysis in the proposed rule. Therefore, the proposed rule has been adopted as final. NASA does not expect this final rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., because it merely removes outdated and unnecessary grant and cooperative agreement references that should not be in the NFS. There are no new reporting requirements or recordkeeping requirements associated with this rule. In addition, there are no other alternatives that could further minimize the already negligible impact on businesses, small or large.

The rule does not contain any information collection requirements that require the approval of OMB under the Paperwork Reduction Act (44 U.S.C. chapter 35).

Accordingly, 48 CFR parts 1815 and 1852 are amended as follows:

Background

On April 27, 2016, NMFS published a proposed rule in the Federal Register (81 FR 24772). The proposed rule was open for public comment until May 12, 2016.

This final rule is issued under the authority of the WCPFC Implementation Act (16 U.S.C. 6901 et seq.), which authorizes the Secretary of Commerce, in consultation with the Secretary of State and the Secretary of the Department in which the United States Coast Guard is operating (currently the Department of Homeland Security), to promulgate such regulations as may be necessary to carry out the obligations of the United States under the Convention, including the decisions of the Commission for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (Commission or WCPFC). The authority to promulgate regulations has been delegated to NMFS.

This final rule implements specific provisions of the Commission's Conservation and Management Measure (CMM) 2015-01, “Conservation and Management Measure for Bigeye, Yellowfin, and Skipjack Tuna in the Western and Central Pacific Ocean.” The preamble to the proposed rule provides background information on the Convention and the Commission, the provisions of CMM 2015-01 that are being implemented in this rule, and the basis for the proposed regulations, which is not repeated here.

This final rule includes three elements, described in detail below, that will be included in regulations at 50 CFR part 300, subpart O.

This final rule prohibits U.S. purse seine vessels from fishing in the Convention Area between the latitudes of 20 °N. and 20 °S. without a WCPFC observer on board, with the exception of fishing trips during which any fishing in the Convention Area takes place entirely within areas under the jurisdiction of a single nation other than the United States. Although U.S. purse seine vessels are exempt from this requirement on trips in which fishing occurs only in the waters of a single foreign nation, it is expected that such foreign nations will require that U.S. purse seine vessels carry observers if fishing in their waters.

A WCPFC observer is an observer deployed from an observer program that has been authorized by the Commission to be part of the WCPFC Regional Observer Programme (see definition at 50 CFR 300.211). Currently, the Pacific Islands Forum Fisheries Agency (FFA) observer program, from which observers for the U.S. WCPO purse seine fleet have traditionally been deployed, and the NMFS observer program, among others, are authorized as part of the WCPFC Regional Observer Programme. Thus, observers deployed by these programs are considered WCPFC observers.

This final rule establishes restrictions on the use of FADs by purse seine vessels, including periods in 2016 and 2017 during which specific uses of FADs are prohibited (FAD prohibition periods), annual limits in 2016 and 2017 on the number of purse seine sets that may be made on FADs (FAD sets), and restrictions on the use of FADs on the high seas throughout 2017.

Specifically, this final rule establishes FAD prohibition periods from July 1 through September 30 in each of 2016 and 2017, a limit of 2,522 FAD sets in each of 2016 and 2017, and a prohibition on FAD sets on the high seas during 2017.

As defined at 50 CFR 300.211, a FAD is “any artificial or natural floating object, whether anchored or not and whether situated at the water surface or not, that is capable of aggregating fish, as well as any object used for that purpose that is situated on board a vessel or otherwise out of the water. The definition of FAD does not include a vessel.” Although the definition of a FAD does not include a vessel, the restrictions during the FAD prohibition periods include certain activities related to fish that have aggregated in association with a vessel, or drawn by a vessel, as described below.

During the July-September FAD prohibition periods in each of 2016 and 2017, after the 2,522 FAD set limit is reached in 2016 or 2017 (until the end of the respective calendar year), and on the high seas throughout 2017, owners, operators, and crew of fishing vessels of the United States are prohibited from doing any of the following activities in the Convention Area in the area between 20 °N. latitude and 20 °S. latitude:

(1) Set a purse seine around a FAD or within one nautical mile of a FAD.

(2) Set a purse seine in a manner intended to capture fish that have aggregated in association with a FAD or a vessel, such as by setting the purse seine in an area from which a FAD or a vessel has been moved or removed within the previous eight hours, setting the purse seine in an area in which a FAD has been inspected or handled within the previous eight hours, or setting the purse seine in an area into which fish were drawn by a vessel from the vicinity of a FAD or a vessel.

(3) Deploy a FAD into the water.

(4) Repair, clean, maintain, or otherwise service a FAD, including any electronic equipment used in association with a FAD, in the water or on a vessel while at sea, except that: A FAD may be inspected and handled as needed to identify the FAD, identify and release incidentally captured animals, un-foul fishing gear, or prevent damage to property or risk to human safety; and a FAD may be removed from the water and if removed may be cleaned, provided that it is not returned to the water.

(5) From a purse seine vessel or any associated skiffs, other watercraft or equipment, submerge lights under water; suspend or hang lights over the side of the purse seine vessel, skiff, watercraft or equipment, or direct or use lights in a manner other than as needed to illuminate the deck of the purse seine vessel or associated skiffs, watercraft or equipment, to comply with navigational requirements, and to ensure the health and safety of the crew. These prohibitions do not apply during emergencies as needed to prevent human injury or the loss of human life, the loss of the purse seine vessel, skiffs, watercraft or aircraft, or environmental damage.

This final rule establishes limits on the amount of bigeye tuna that may be caught in the Convention Area by U.S. fishing vessels using longline gear in each of 2016 and 2017. The limit for 2016 is 3,554 mt, and the limit for 2017 is 3,345 mt. If NMFS later determines that there was an overage of the limit for 2016, NMFS will adjust the 2017 limit in accordance with the provisions of CMM 2015-01 and any other pertinent Commission decisions in force at the time.

The 2016 and 2017 longline bigeye tuna catch limits apply only to U.S-flagged longline vessels operating as part of the U.S. longline fisheries. The limits do not apply to U.S. longline vessels operating as part of the longline fisheries of American Samoa, the Commonwealth of the Northern Mariana Islands, or Guam, which are U.S. Participating Territories in the Commission. Existing regulations at 50 CFR 300.224(b), (c), and (d) detail the manner in which longline-caught bigeye tuna is attributed among the fisheries of the United States and the U.S. Participating Territories.

The catch limits will be measured in terms of retained catches—that is, bigeye tuna that are caught by longline gear and retained on board the vessel.

As set forth under the existing regulations at 50 CFR 300.224(e), if NMFS determines that the 2016 or 2017 limit is expected to be reached before the end of the respective calendar year, NMFS will publish a notice in the Federal Register to announce specific fishing restrictions that will be effective from the date the limit is expected to be reached until the end of that calendar year. NMFS will publish the notice of the restrictions at least 7 calendar days before the effective date to provide vessel owners and operators with advance notice. Periodic forecasts of the date the limit is expected to be reached will be made available to the public on the Web site of the NMFS Pacific Islands Regional Office, at www.fpir.noaa.gov/SFD/SFD_regs_3.html, to help vessel owners and operators plan for the possibility of the limit being reached.

As set forth under the existing regulations at 50 CFR 300.224(f), if the 2016 or 2017 limit is reached, the following restrictions will go into effect:

(1) Retaining on board, transshipping, or landing bigeye tuna: Starting on the effective date of the restrictions and extending through December 31 of the applicable year, it will be prohibited to use a U.S. fishing vessel to retain on board, transship, or land bigeye tuna captured in the Convention Area by longline gear, with three exceptions, as described below.

First, any bigeye tuna already on board a fishing vessel upon the effective date of the restrictions may be retained on board, transshipped, and/or landed, provided that they are landed within 14 days after the restrictions become effective. A vessel that had declared to NMFS pursuant to 50 CFR 665.803(a) that the current trip type is shallow-setting will not be subject to this 14-day landing restriction, so these vessels will be able to land bigeye tuna more than 14 days after the restrictions become effective.

Second, bigeye tuna captured by longline gear may be retained on board, transshipped, and/or landed if they are caught by a fishing vessel registered for use under a valid American Samoa Longline Limited Access Permit, or if they are landed in American Samoa, Guam, or the CNMI. However, the bigeye tuna must not be caught in the portion of the U.S. exclusive economic zone (EEZ) surrounding the Hawaiian Archipelago, and must be landed by a U.S. fishing vessel operated in compliance with a valid permit issued under 50 CFR 660.707 or 665.801.

Third, bigeye tuna captured by longline gear may be retained on board, transshipped, and/or landed if they are caught by a vessel that is included in a valid specified fishing agreement under 50 CFR 665.819(d), in accordance with 50 CFR 300.224(f)(1)(iv).

(2) Transshipping bigeye tuna to certain vessels: To the extent authorized under the prohibition described above on “retaining on board, transshipping, or landing bigeye tuna,” starting on the effective date of the restrictions and extending through December 31 of the applicable year, it will be prohibited to transship bigeye tuna caught by longline gear in the Convention Area to any vessel other than a U.S. fishing vessel operated in compliance with a valid permit issued under 50 CFR 660.707 or 665.801.

(3) Fishing inside and outside the Convention Area: To help ensure compliance with the restrictions related to bigeye tuna caught by longline gear in the Convention Area, this final rule establishes two additional, related prohibitions that will go into effect starting on the effective date of the restrictions and extending through December 31 of the applicable year. First, vessels will be prohibited from fishing with longline gear both inside and outside the Convention Area during the same fishing trip, with the exception of a fishing trip that is in progress at the time the announced restrictions go into effect. In the case of a fishing trip that is in progress at the time the restrictions go into effect, the vessel still must land any bigeye tuna taken in the Convention Area within 14 days of the effective date of the restrictions, as described above. Second, if a vessel is used to fish using longline gear outside the Convention Area and enters the Convention Area at any time during the same fishing trip, the longline gear on the fishing vessel must be stowed in a manner so as not to be readily available for fishing while the vessel is in the Convention Area. These two prohibitions will not apply to vessels on declared shallow-setting trips pursuant to 50 CFR 665.803(a), or vessels operating for the purposes of this rule as part of the longline fisheries of American Samoa, Guam, or the CNMI. This second group includes vessels registered for use under valid American Samoa Longline Limited Access Permits; vessels landing their bigeye tuna catch in one of the three U.S. Participating Territories, so long as these vessels conduct fishing activities in accordance with the conditions described above; and vessels included in a specified fishing agreement under 50 CFR 665.819(d), in accordance with 50 CFR 300.224(f)(1)(iv).

NMFS received several comments on the proposed rule. The comments are summarized below, followed by responses from NMFS.

Comment 1: I support the proposed regulations; they are logical steps towards sustainable use of international fisheries and will have a positive impact on these fisheries and will contribute to improving sustainability of tropical tuna stocks. Additionally, the regulations may set a new standard for other nations to improve regulations on these important and vulnerable resources.

Response: NMFS acknowledges the comment.

Comment 2: The Hawaii Longline Association commented as follows on the proposed longline bigeye tuna catch limits for 2016-2017.

It is well established that the United States cannot end overfishing of bigeye tuna in the WCPO through unilateral actions, and unilateral suppression of U.S. commercial longline bigeye tuna fishing would be counterproductive to conservation of bigeye tuna and other species.

We understand that there was no overage of the U.S. longline bigeye tuna catch limit for 2015, so we expect the 2016 limit to be 3,554 mt, as in the proposed rule. If the 2016 limit is reached and a specified fishing agreement (under 50 CFR 665.819(c)) is effective and has been approved at the time the limit is reached, any fish landed immediately after the limit is reached should be attributed to the U.S. territory that is a party to the specified fishing agreement.

In 2015 the Hawaii deep-set longline fishery was closed for an extended period in the WCPO and a great many vessels had to cease fishing entirely—even though a specified fishing agreement had been executed—because NMFS' issuance of territory specification regulations was delayed. We request that NMFS act promptly and with all due diligence in completing the territory specification rulemaking process in 2016.

Response: NMFS agrees that ending overfishing of bigeye tuna will require multilateral efforts by the countries involved in fisheries for the stock.

With respect to the 2015 longline bigeye tuna catch limit, the commenter's understanding that there was no overage of the 2015 limit is correct. NMFS explained in the proposed rule that if, after publishing the proposed rule, NMFS determines that there was an overage in 2015, NMFS would adjust the 2016 limit as follows: An amount equal to the overage would be subtracted from 3,554 mt to determine the annual limit for 2016. Since publication of the proposed rule, NMFS has determined that that there was no overage of the 2015 limit. As a result, the limit for 2016, as established in this final rule, is unchanged from the proposed limit, 3,554 mt.

With respect to what will occur if the 2016 longline bigeye tuna limit is reached, bigeye tuna caught by vessels included in specified fishing agreements under 50 CFR 665.819(c) will be attributed among fisheries according to the existing criteria and procedures at 50 CFR 300.224(d) and 665.819, which are not revised by this final rule. NMFS emphasizes that whether a given bigeye tuna will be attributed to the U.S. territory that is party to a specified fishing agreement will depend on, among other things, the start date for the agreement as determined under 50 CFR 665.819(c)(9).

With respect to the issuance of specifications related to longline bigeye tuna catch limits for the U.S. territories and specified fishing agreements for 2016, NMFS acknowledges the comment and will undertake the rulemaking process in accordance with applicable laws and regulations.

Comment 3: The Center for Biological Diversity (CBD) submitted comments stating that it has a strong interest in eliminating fisheries impacts on marine mammals protected under the Marine Mammal Protection Act (MMPA), as well as marine species listed under the Endangered Species Act (ESA).

In support of its comments, CBD stated that WCPO fisheries involve primarily purse seine and longline fishing, targeting bigeye, yellowfin, and skipjack tuna species, but that bycatch in these fisheries is common, sometimes accounting for more than 30 percent of a ship's annual haul. CBD stated that every year, fishing fleets are known to ensnare species protected under the MMPA and ESA as part of their fishing operation, but observers on U.S. vessels only conduct limited identification and reporting of impacts to protected marine mammals and sea turtles, and observers remain undertrained for this task. CBD noted that the Biological Opinion on the Effects of the U.S. Tuna Purse Seine Fishery in the Western and Central Pacific Ocean on Listed Sea Turtles and Marine Mammals (2006 BiOp) described limitations on observer data collected for the U.S. purse seine fishery operating in the WCPO regarding the specific protected species with which the fishery interacts. Due to the limitations on the data, the 2006 BiOp did not estimate the total number of marine mammals projected to be captured each year, and NMFS did not set a take limit for these species. CBD noted that according to the 2006 BiOp, four of the 12 recorded capture events between 1997 and 2004 involved interactions with whale species, possibly involving multiple individuals each time.

Response: NMFS acknowledges that that there were limitations in available data during completion of the 2006 BiOp. Beginning in 2010, however, consistent with WCPFC conservation and management measures, the U.S. WCPO purse seine fishery has been subject to increased observer coverage requirements adopted by the WCPFC. With this increased observer coverage, more robust data have become available. NMFS reinitiated formal ESA Section 7 consultation for the WCPO purse seine fishery for the effects of the fishery on the recently listed Indo-West Pacific Distinct Population Segment (DPS) of the scalloped hammerhead shark, and we expect completion of formal consultation for that species by the end of 2016. NMFS also is developing a biological assessment for the U.S. WCPO purse seine fishery in anticipation of reinitiating ESA Section 7 consultation for one or more other species, as may be warranted, based on raw observer data recently obtained from the Pacific Islands Forum Fisheries Agency (FFA), located in Honiara, Solomon Islands.

Comment 4: CBD submitted comments stating that in the 2006 BiOp, NMFS estimated that purse seining in the WCPO would take 61 sea turtles annually, and possibly as many as 122. In addition to being caught in nets, NMFS also determined in the 2006 BiOp that ship strikes remain a risk to both sea turtles and marine mammals, though the 2006 BiOp failed to estimate the number of individuals that may be taken in this manner or to set take limits based on assumptions regarding the risk of ship strikes.

Response: The 2006 BiOp provides information on worldwide ship strikes of whales, but indicates that there were no recorded ship strikes in the action area and that observer data for the U.S. WCPO purse seine fishery available at the time indicated that interactions with large whales, including ESA-listed species, were relatively uncommon in both the action area and throughout the Pacific Ocean. According to the 2006 BiOp, of the 292 recorded ship strikes from the years 1975 to 2002, 134 incidents had a known vessel type and fishing vessels were responsible for four of those 134 ship strikes. Thus, NMFS determined that the probability of a vessel in the U.S. WCPO purse seine fishery colliding with listed whale species was low in the action area.

The 2006 BiOp also states that relative to other threats, vessel collisions are not considered a current problem for sea turtle species in the action area, with the possible exception of green and hawksbill turtles in Hawaii and green turtles in Palau. The 2006 BiOp indicates that there are no reports of ship strikes of the U.S. WCPO purse seine fishery on sea turtles. Moreover, the 2006 BiOp states that data regarding sea turtles in the U.S. WCPO purse seine fishery available at the time indicate that all sea turtles caught in nets were released alive.

Comment 5: CBD submitted comments stating that in order for reporting to be meaningful and effective, NMFS must ensure observers are properly trained and that they provide accurate, reliable reports of protected animals taken down to the species level. According to CBD, the 2006 BiOp and the PEA highlight that the quality of purse seine observer data is unacceptably low. Moreover, CBD stated, one of the enforceable terms and conditions in the BiOp is to improve data collection, as NMFS mandated that the agency work to ensure that observers collect standardized information regarding the incidental capture, injury, and mortality of sea turtles including species, gear and set information for each interaction that occurs. That NMFS has no observer data regarding protected species is evidence that this term and condition has not been met. CBD stated that to ensure compliance with the ESA, the observer program must have a separate and equal focus of recording and reporting adequate information on the species taken, the number of impacted individuals in each observed take event, and all observed impacts to these individuals, in light of the low threshold for take. Without this information, it is impossible for NMFS to ensure that the WCPO fishery participants are adhering to the terms of its 2006 Incidental Take Statement (ITS). Additionally, observers should not myopically focus only on net-related take events; instead, they also should be trained and ordered to report on all observed take events, including ship strikes, as other take events may be a significant yet unreported portion of the incidental take within this fishery.

Response: As stated above, beginning in 2010, the U.S. WCPO purse seine fishery has been subject to increased observer coverage requirements adopted by the WCPFC. These observers are deployed by FFA and must undergo specialized training and certifications. FFA observers also have been authorized by the WCPFC to function as WCPFC observers and so meet the training and certification requirements of the WCPFC's Regional Observer Programme. NMFS has provided financial resources to the FFA to support the augmentation of the FFA observer training curriculum to focus on better identification of species of special concern, which include but are not limited to marine mammals, marine reptiles, sharks, and seabirds. FFA-deployed observers on U.S. purse seine vessels have collected specific information on all protected species interactions since 2008. This information is not focused solely on net-related take events. Preliminary raw data are currently available from 2008 to 2014. This raw observer data recently received from the FFA indicates low levels of interactions with some protected species since 2008. This data is currently being analyzed for management use. NMFS is continuing to work with FFA to obtain verified data closer to real-time in accordance with the ITS specified in the 2006 BiOp and the terms and condition of the 2006 BiOp. As stated above, NMFS also is developing a biological assessment for the U.S. WCPO purse seine fishery in anticipation of reinitiating ESA Section 7 consultation for one or more species (other than the Indo-West Pacific DPS of the scalloped hammerhead shark), as may be warranted, based on the observer data recently obtained from FFA.

Comment 6: CBD also provided comments stating that it is crucial that NMFS annually make observer reports available to the public. The last time NMFS made these data available was in the 2006 BiOp, prior to the transition to 100 percent observer coverage. Without these observer data, it is impossible for concerned citizens, scientists, or organizations to evaluate adherence to or the effectiveness of any conservation measures NMFS has proposed and is authorized to enforce. Publishing this information would make it possible for interested parties to independently judge the quality of observer data, and, over the years, track any improvement or decline in the quality of this information. For these reasons and others, it is important that NMFS provide access to this information on a regular basis.

Response: Observer data collected by the FFA observer program are subject to confidential handling under various authorities, including but not limited to the Privacy Act, 5 U.S.C. 552a; Trade Secrets Act, 18 U.S.C. 1905; Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801 et seq.; Marine Mammal Protection Act, 16 U.S.C. 1361, et seq.; South Pacific Tuna Act, 16 U.S.C. 973; and Endangered Species Act, 16 U.S.C. 1531, et seq. NMFS endeavors to make information on protected species impacts accessible to the public, but in a format that does not compromise the confidentiality of non-public domain data, or violate the United States' international obligations. NMFS further notes that the dissemination of observer data is outside the scope of this rulemaking.

Comment 7: CBD provided comments stating that NMFS should reinitiate ESA Section 7 consultation for the U.S. WCPO purse seine fishery, based on events and conditions occurring after NMFS finalized its 2006 BiOp. According to CBD, the PEA incorrectly states that the U.S. purse seine fishery operating in the WCPO has had limited interactions with marine mammals in recent years and the number of these interactions and whether the marine mammals were ESA-listed species is unknown at this time. CBD states that the 2006 BiOp includes references to recorded impacts to ESA-listed whales and sea turtles and is evidence that NMFS anticipates future take, by virtue of the incidental take limits set for each species of sea turtle that occurs within the Convention Area. In addition, since 2006, fishing effort has increased dramatically, which requires reinitiation of consultation and revision of the 2006 BiOp. Since 2006, the U.S. WCPO purse seine fishery has increased both in the number of vessels participating and in the total tonnage of fish caught, so the fishery is likely operating in a manner that exceeds the take limits set for each sea turtle species in the 2006 BiOp. The new relaxed fishing vessel registration policy, the four-fold increase in the number of U.S. fishing vessels, and the two-fold increase in fishing effort are more than sufficient to trigger reinitiation of Section 7 consultation. Moreover, the recent changes to the listing status of green and loggerhead turtles trigger reinitiation of consultation. The new DPS for these species contain new information that may affect listed species in a manner or to an extent not previously considered.

Response: NMFS acknowledges CBD's comments. As stated above, observers deployed by the FFA on U.S. purse seine vessels operating in the WCPO currently collect detailed information on incidentally caught species, discards and interactions with species of special interest, including species protected under the ESA and MMPA. Since 2010, there has been observer coverage on virtually 100 percent of U.S. purse seine fishing trips in the Convention Area. NMFS is continuing to analyze the observer-collected data for recent years—that is, for years subsequent to the data used for the completion of the 2006 BiOp. NMFS has reinitiated ESA Section 7 consultation on the effects of the U.S. WCPO purse seine fishery on the Indo-West Pacific DPS of the scalloped hammerhead shark and, as indicated in the SIR, expects that consultation to be completed by the end of 2016. NMFS also is developing a biological assessment for the U.S. WCPO purse seine fishery in anticipation of reinitiating ESA Section 7 consultation for one or more other species under the jurisdiction of NMFS and any new ITS for ESA-listed species will be based on the completed analysis of the best available information. Observer-collected data would be made available, as appropriate, to the public in nonconfidential form through the publication of any Biological Opinion for the fishery.

NMFS acknowledges that the number of vessels participating in the fishery has returned to historic levels since the 2006 BiOP was completed, and the current number of active vessels and the number of sets per year is more similar to the historic activity of the fleet in the late 1990s (see Table 2 of the PEA). However, the number of available licenses from FFA for the fleet that was analyzed within the PEA remains the same, the area where the fishery operates remains essentially the same, and the fishing techniques remain the same. As stated above, NMFS has reinitiated ESA Section 7 consultation on the effects of the U.S. WCPO purse seine fishery on the Indo-West Pacific DPS of the scalloped hammerhead shark and as indicated in the SIR, expects that consultation to be completed by the end of 2016. NMFS also is developing a biological assessment for the U.S. WCPO purse seine fishery in anticipation of reinitiating ESA Section 7 consultation for one or more other species under the jurisdiction of NMFS, as applicable, based on observer data recently obtained from the FFA.

Comment 8: CBD provided comments stating that in its new BiOp, NMFS must set a take limit for any ESA-listed marine mammals that occur within the Convention Area. In the 2006 BiOp, NMFS acknowledged that whales have interacted with nets and risk being struck by fishing vessels, but despite this, the 2006 BiOp failed to set a take limit for listed whale species. Contrary to the conclusions in the 2006 BiOp, any interaction with fishing gear constitutes a take within the meaning of the ESA, and take limits must be set accordingly. Furthermore, NMFS should consider take not only based off of net interactions, but also from probable ship strikes. Considering the real risk of these impacts, it is important for NMFS to reevaluate the risk of take, especially in light of the four-fold increase in U.S. fishing vessels and two-fold increase in fishing effort since NMFS published its WCPO BiOp in 2006. To issue a take limit for ESA-listed marine mammals, NMFS must first issue an MMPA authorization. The MMPA places a moratorium on the taking of marine mammals, and only under limited exceptions to this moratorium may NMFS allow take incidental to commercial fishing operations. NMFS must authorize vessels' take of threatened or endangered marine mammals during a period of up to three years after making a finding of negligible impact and finding that other MMPA requirements are met. NMFS cannot issue such authorization without a thorough analysis of the impacts of the fishery on the listed marine mammals. Thus, adequate monitoring of marine mammal mortality is necessary for continued operation of the fishery.

Response: As stated above, NMFS is developing a biological assessment for the U.S. WCPO purse seine fishery in anticipation of reinitiating ESA Section 7 consultation for one or more other species under the jurisdiction of NMFS, based on recently obtained raw observer data from the FFA. NMFS will analyze the effects of the fishery on any ESA-listed species, including marine mammals, in the action area and develop ITS, as appropriate, based on the best available data. NMFS notes that some of the marine mammal species present in the action area are not ESA-listed or depleted under the MMPA. The U.S. WCPO purse seine fishery has been designated as a Category II fishery under the regulations that govern the incidental take of marine mammals during fishing operations under the MMPA. This means that the fishery is considered to result in occasional serious injuries and mortalities to marine mammals. NMFS is continuing to analyze observer-collected data, as well as other available data, and will follow the process to obtain the appropriate permits under the MMPA if they indicate that incidental takes of ESA-listed marine mammals have occurred in the U.S. WCPO purse seine fishery.

No changes from the proposed regulations have been made in these final regulations.

The Administrator, Pacific Islands Region, NMFS, has determined that this final rule is consistent with the WCPFC Implementation Act and other applicable laws.

There is good cause under 5 U.S.C. 553(d)(3) to establish an effective date less than 30 days after date of publication for the purse seine FAD restrictions and the 2016 longline bigeye tuna catch limit. NMFS must establish the FAD restrictions by July 1, 2016, to comply with the provisions of CMM 2015-01. With respect to the longline bigeye tuna catch limit, NMFS' latest forecast indicates that the 2016 limit of 3,554 mt could be reached in the latter half of July. Also, in the event the catch limit is expected to be reached, the regulations at 50 CFR 300.224(e) provide for NMFS to publish the notice announcing fishing prohibitions at least seven days in advance of the date the prohibitions go into effect. Thus, there would be substantial risk of the 2016 longline bigeye tuna catch limit being exceeded if this rule is not made effective by July 1, 2016. The FAD restrictions and longline bigeye tuna catch limits are intended to reduce or otherwise control fishing pressure on bigeye tuna in the WCPO in order to restore this stock to levels capable of producing maximum sustainable yield on a continuing basis. According to the NMFS stock status determination criteria, bigeye tuna in the Pacific Ocean is currently experiencing overfishing. Failure to establish the FAD restrictions and the 2016 longline bigeye tuna catch limit by July 1, 2016, would result in additional fishing pressure on this stock, and would be inconsistent with CMM 2015-01. Thus, NMFS finds that delaying the effective date of the FAD restrictions and the 2016 longline bigeye tuna catch limit past July 1, 2016, would be contrary to the public interest.

This final rule has been determined to be not significant for purposes of Executive Order 12866.

A final regulatory flexibility analysis (FRFA) was prepared as required by section 604 of the RFA. The FRFA incorporates the initial regulatory flexibility analysis (IRFA) prepared for the proposed rule. The analysis in the IRFA is not repeated here in its entirety. A description of the action, why it is being considered, and the legal basis for this action are contained in the SUMMARY section of the preamble and in other sections of this SUPPLEMENTARY INFORMATION section of this final rule, above. The analysis follows:

NMFS did not receive any comments on the IRFA, but the Hawaii Longline Association provided comments on the economic impacts of the longline bigeye tuna catch limit established in a previous rule, for 2015, and requested that NMFS act promptly and with all due diligence in completing the territory specification rulemaking process in 2016 (see comment 2 and NMFS' response, above).

Small entities include “small businesses,” “small organizations,” and “small governmental jurisdictions.” The Small Business Administration (SBA) has established size standards for all major industry sectors in the United States, including commercial finfish harvesters (NAICS code 114111). A business primarily involved in finfish harvesting is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $20.5 million for all its affiliated operations worldwide.

The final rule applies to owners and operators of U.S. purse seine and longline vessels used for fishing for HMS in the Convention Area. The number of purse seine vessels affected by the rule is approximated by the number with WCPFC Area Endorsements, which are the NMFS-issued authorizations required to use a vessel to fish commercially for HMS on the high seas in the Convention Area. As of May 2016 the number of purse seine vessels with WCPFC Area Endorsements was 41.

The final rule applies to U.S. longline vessels used to fish for HMS in the Convention Area, except those operating as part of the longline fisheries of American Samoa, the CNMI, or Guam. The total number of affected longline vessels is approximated by the number of vessels with Hawaii Longline Limited Access Permits (issued under 50 CFR 665.13), although some such vessels might be able to operate as part of the longline fisheries of the U.S. Participating Territories and thus not be affected. Under the Hawaii longline limited access program, no more than 164 permits may be issued. During 2006-2012 the number of permitted vessels ranged from 130 to 145. The number of permitted vessels as of April 2016 was 139. U.S. longline vessels based on the U.S. west coast without Hawaii Longline Limited Access Permits also could be affected by this rule if they fish in the Convention Area. However, the number of such vessels is very small and fishing in the Convention Area by such vessels is rare, so it is expected that very few, if any, such vessels will be affected.

Most of the Hawaii longline fleet targets bigeye tuna using deep sets, and during certain parts of the year, portions of the fleet target swordfish using shallow sets. In the years 2005 through 2013, the estimated numbers of Hawaii longline vessels that actually fished ranged from 124 to 135. Of the vessels that fished, the number of vessels that engaged in deep-setting in the years 2005 through 2013 ranged from 122 to 135, and the number of vessels that engaged in shallow-setting ranged from 15 to 35. The number of vessels that engaged in both deep-setting and shallow-setting ranged from 15 to 35. The number of vessels that engaged exclusively in shallow-setting ranged from zero to two.

Based on limited available financial information about the affected fishing vessels and the SBA's small entity size standards for commercial finfish harvesters, and using individual vessels as proxies for individual businesses, NMFS believes that all the affected fish harvesting businesses—in both the purse seine and longline sectors—are small entities. NMFS used estimates of average per-vessel returns over recent years to estimate annual revenue, because gross receipts and ex-vessel price information specific to the individual affected vessels are not available to NMFS.

For the affected purse seine vessels, 2013 is the most recent year for which complete catch data are available, and NMFS estimates that the average annual receipts over 2011-2013 for each purse seine vessel were less than the $20.5 million threshold for finfish harvesting businesses. The greatest was about $20 million, and the average was about $12 million. This is based on the estimated catches of each vessel in the purse seine fleet during that period, and indicative regional cannery prices developed by the FFA (available at https://www.ffa.int/node/425). Since 2013, cannery prices for purse seine-caught tuna have declined dramatically, so the vessels' revenues in 2014 and 2015 very likely declined as well.

For the longline fishery, the ex-vessel value of catches in the Hawaii longline fishery in 2013 was about $0.7 million per vessel, on average, well below the $20.5 million threshold for finfish harvesting businesses.

The recordkeeping, reporting, and other compliance requirements are discussed below for each element of the final rule, as described earlier in the SUPPLEMENTARY INFORMATION section of the preamble. Fulfillment of these requirements is not expected to require any professional skills that the affected vessel owners and operators do not already possess. The costs of complying with the requirements are described below to the extent possible:

This element of the final rule does not establish any new reporting or recordkeeping requirements. The new compliance requirement is for affected vessel owners and operators to carry WCPFC observers on all fishing trips in the Convention Area between the latitudes of 20 °N. and 20 °S., with the exception of fishing trips during which any fishing in the Convention Area takes place entirely within areas under the jurisdiction of a single nation other than the United States. The expected costs of complying with this requirement are described below.

Under the South Pacific Tuna Treaty (SPTT), U.S. purse seine vessels operating in the Treaty Area (which is almost entirely in the Convention Area) are required to carry observers on about 20 percent of their fishing trips, which equates to roughly one trip per year per vessel. The observers required under the terms of the SPTT are deployed by the FFA, which acts as the SPTT Administrator on behalf of the Pacific Island Parties to the SPTT. The FFA observer program has been authorized to be part of the WCPFC observer program, so FFA-deployed observers are also WCPFC observers. Thus, in a typical year for a typical U.S. purse seine vessel, the cost of carrying observers to satisfy requirements under the SPTT can be expected to constitute 20 percent of the costs of the requirement in this rule. However, recent events associated with the SPTT make 2016 an atypical year. Because of late negotiations among the SPTT parties on the terms of access in foreign zones in the SPTT Area for 2016, no U.S. vessels were licensed under the SPTT until March of 2016, and thus none were authorized to fish in foreign zones or on the high seas in the Treaty Area until then. The terms of access for future years, and the SPTT itself, are uncertain. Given this uncertainty, an upper-bound estimate of the costs of compliance is provided here. For this purpose, it is assumed that fishing patterns in the Convention Area will be similar to the pattern in recent years, and that observer coverage under the terms of the SPTT will not contribute at all to the costs of complying with this requirement.

Based on the U.S. purse seine fleet's fishing patterns in 2011-2013, it is expected that each vessel will spend about 252 days at sea per year, on average, with some vessels spending as many as about 354 days at sea per year.

The compliance costs of the requirement can be broken into two parts: 1) The costs of providing food, accommodation, and medical facilities to observers (observer accommodation costs); and 2) the fees imposed by observer providers for deploying observers (observer deployment costs). Observer accommodation costs are expected to be about $20 per vessel per day-at-sea.

With respect to observer deployment costs, affected fishing companies can use observers from any program that has been authorized by the Commission to be part of the WCPFC Regional Observer Programme. In other words, they are not required to use FFA observers, which they have traditionally used until now. Nonetheless, the costs of deploying FFA observers are probably good indications of observer deployment costs in the region generally, and they are used for this analysis. Based on budgets and arrangements for the deployment of observers under the FFA observer program, observer deployment costs are expected to be about $230 per vessel per day-at-sea. Thus, combined observer accommodation costs and observer deployment costs are expected to be about $250 per vessel per day-at-sea. For the average vessel, which is expected to spend about 252 days at sea per year, the total cost of compliance are therefore expected to be about $63,000 per year. The cost for vessels that spend fewer days at sea will be accordingly less. At the other extreme, if a vessel spends 354 days at sea (the top of the range in 2011-2013), the total cost of compliance will be about $88,500 per year. Both of these figures are upper-bound estimates. If arrangements under the SPTT return to something like they have been in the past, then the numbers of days spent at sea on fishing trips in the Convention Area are likely to be close to the levels described above, but the compliance costs will be about 20 percent less than estimated above because observer coverage under the SPTT will satisfy about 20 percent of the coverage required under this rule. If arrangements under the SPTT do not return to something like they have been in the recent past, then the number of days spent at sea on fishing trips in the Convention Area could be substantially lower than as described above, and the costs of complying with this requirement will be accordingly less.

This element of the final rule does not establish any new reporting or recordkeeping requirements. The new requirement is for affected vessel owners and operators to comply with the FAD restrictions described earlier in the SUPPLEMENTARY INFORMATION section of the preamble, including FAD prohibition periods from July 1 through September 30 in each of 2016 and 2017; limits of 2,522 FAD sets that may be made in each of 2016 and 2017; and prohibitions on specific uses of FADs on the high seas in 2017. The expected costs of complying with this requirement are described below to the extent possible.

The FAD restrictions will substantially constrain the manner in which purse seine fishing can be conducted in the specified areas and periods in the Convention Area; in those areas and during those periods, vessels will be able to set only on free, or “unassociated,” schools.

The costs associated with the FAD restrictions cannot be quantitatively estimated, but the fleet's historical use of FADs can give a qualitative indication of the costs. In the years 1997-2013, the proportion of sets made on FADs in the U.S. purse seine fishery ranged from less than 30 percent in some years to more than 90 percent in others. Thus, the importance of FAD sets in terms of profits appears to be quite variable over time, and is probably a function of many factors, including fuel prices (unassociated sets involve more searching time and thus tend to bring higher fuel costs than FAD sets) and market conditions (e.g., FAD fishing, which tends to result in greater catches of lower-value skipjack tuna and smaller yellowfin tuna and bigeye tuna than unassociated sets, might be more attractive and profitable when canneries are not rejecting small fish). Thus, the costs of complying with the FAD restrictions will depend on a variety of factors.

In 2010-2013, the last 4 years for which complete data are available and for which there was 100 percent observer coverage, the U.S. WCPO purse seine fleet made about 39 percent of its sets on FADs. During the months when setting on FADs was allowed, the percentage was about 58 percent. The fact that the fleet has made such a substantial portion of its sets on FADs indicates that prohibiting the use of FADs in the specified areas and periods could bring substantial costs and/or revenue losses.

To mitigate these impacts, vessel operators might choose to schedule their routine vessel and equipment maintenance during the FAD prohibition periods. However, the limited number of vessel maintenance facilities in the region might constrain vessel operators' ability to do this. It also is conceivable that some vessels might choose not to fish at all during the FAD prohibition periods rather than fish without the use of FADs. Observations of the fleet's behavior in 2009-2013, when FAD prohibition periods were in effect, do not suggest that either of these responses occurred to an appreciable degree. The proportion of the fleet that fished during the two- and three-month FAD prohibition periods of 2009-2013 did not appreciably differ from the proportion that fished during the same months in the years 1997-2008, when no FAD prohibition periods were in place.

The FAD restrictions for 2016 are similar to those in place in 2013-2015, except that there is a limit of 2,522 FAD sets instead of the October FAD prohibition period that was in place in 2013-2015. 2016 is an unusual year in that SPTT licenses for 2016 were not issued until March, and the number of licensed vessels (34 as of May 2016) is fewer than in recent years. Thus, the level of purse seine fishing effort to date in the Convention Area in 2016 is somewhat lower than typical levels in recent years. As a result, the expected amount of fishing effort in the Convention Area in 2016 is expected to be substantially less than in recent years. Consequently, the 2,522 FAD set limit will be less constraining than it would be if fishing effort were greater. For example, if total fishing effort in 2016 is 5,000 fishing days (about 62% of the average in 2010-2013), and the average number of sets made per fishing day is the same as in 2010-2013 (0.97), and the average number of all sets that are FAD sets (“FAD set ratio”) during periods when FAD sets are allowed is the same as in 2010-2013 (58%), and if fishing effort is evenly distributed through the year, then the number of FAD sets expected in 2016 under the final rule will be about 2,130, somewhat less than the limit of 2,522. Under the assumptions described above, the limit of 2,522 FAD sets will start to become constraining at a total fishing effort level of 5,900 fishing days.

The effects of the FAD restrictions in 2017 will likely be greater than in 2016 because of the additional prohibition on setting on FADs on the high seas. The magnitude of that additional impact cannot be predicted, but as an indication of the additional impact, in 2010-2013, about 10 percent of the fleet's fishing effort occurred on the high seas. As in 2016, the impact of the 2,522 FAD set limit in 2017 will be primarily a function of the fleet's total level of fishing effort. Given the uncertainty related to the future of the SPTT, fishing effort in 2017 is very difficult to predict. As described above for 2016, the limit will start to become constraining at a fishing effort level of about 5,900 fishing days, but in 2017 that threshold will be applicable only in the portion of the Convention Area that is not high seas (again, about 10 percent of fishing effort has occurred on the high seas in recent years).

In summary, the economic impacts of the FAD prohibition periods and FAD set limits in 2016 and 2017 and the prohibition on using FADs on the high seas throughout 2017 cannot be quantified, but they could be substantial. Their magnitude will depend in part on market conditions, oceanic conditions, and the fleet's fishing effort in 2016 and 2017, which will be determined in part by any limits on allowable levels of fishing effort in foreign EEZs and on the high seas in the Convention Area.

This element of the final rule will not establish any new reporting or recordkeeping requirements. The new compliance requirement is for affected vessel owners and operators to cease retaining, landing, and transshipping bigeye tuna caught with longline gear in the Convention Area if and when the bigeye tuna catch limit is reached in 2016 (3,554 mt) or 2017 (3,345 mt), for the remainder of the calendar year, subject to the exceptions and provisos described in other sections of this SUPPLEMENTARY INFORMATION section of the preamble. Although the restrictions that will come into effect in the event the catch limit is reached will not prohibit longline fishing, per se, they are sometimes referred to in this analysis as constituting a fishery closure. The costs of complying with this requirement are described below to the extent possible.

Complying with this element of the final rule could cause foregone fishing opportunities and result in associated economic losses in the event that the bigeye tuna catch limit is reached in 2016 or 2017 and the restrictions on retaining, landing, and transshipping bigeye tuna are imposed for portions of either or both of those years. These costs cannot be projected quantitatively with any certainty. The limits of 3,554 mt for 2016 and 3,345 mt for 2017 can be compared to catches in 2005-2008, before limits were in place. The average annual catch in that period was 4,709 mt. Based on that history, as well as fishing patterns in 2009-2015, when limits were in place, there appears to be a relatively high likelihood of the limits being reached in 2016 and 2017. 2015 saw exceptionally high catches of bigeye tuna. Although final estimates for 2015 are not available, the limit of 3,502 mt was estimated to have been reached by, and the fishery was closed on, August 5 (see temporary rule published July 28, 2015; 80 FR 44883). The fishery was subsequently re-opened for vessels included in agreements with the governments of the CNMI and Guam under regulations implementing Amendment 7 to the Fishery Ecosystem Plan for Pelagic Fisheries of the Western Pacific Region (Pelagics FEP) (50 CFR 665.819). If bigeye tuna catch patterns in 2016 or 2017 are like those in 2005-2008, the limits will likely be reached in the fourth quarter of the year. If catches are more accelerated, as in 2015, the limits could be reached in the third quarter of the year.

If the bigeye tuna limit is reached before the end of 2016 or 2017 and the Convention Area longline bigeye tuna fishery is consequently closed for the remainder of the calendar year, it can be expected that affected vessels would shift to the next most profitable fishing opportunity (which might be not fishing at all). Revenues from that next best alternative activity reflect the opportunity costs associated with longline fishing for bigeye tuna in the Convention Area. The economic cost of the rule would not be the direct losses in revenues that would result from not being able to fish for bigeye tuna in the Convention Area, but rather the difference in benefits derived from that activity and those derived from the next best activity. The economic cost of the rule on affected entities is examined here by first estimating the direct losses in revenues that would result from not being able to fish for bigeye tuna in the Convention Area as a result of the catch limit being reached. Those losses represent the upper bound of the economic cost of the rule on affected entities. Potential next-best alternative activities that affected entities could undertake are then identified in order to provide a (mostly qualitative) description of the degree to which actual costs would be lower than that upper bound.

Upper bounds on potential economic costs can be estimated by examining the projected value of longline landings from the Convention Area that would not be made as a result of reaching the limit. For this purpose, it is assumed that, absent this rule, bigeye tuna catches in the Convention Area in each of 2016 and 2017 would be 5,000 mt, slightly more than the average in 2005-2008. Under this scenario, imposition of limits of 3,554 mt for 2016 and 3,345 mt for 2017 would result in 29 percent and 33 percent less bigeye tuna being caught in those two years, respectively, than under no action. In the deep-set fishery, catches of marketable species other than bigeye tuna would likely be affected in a similar way if vessels do not shift to alternative activities. Assuming for the moment that ex-vessel prices would not be affected by a fishery closure, under the rule, revenues in 2016 and 2017 to entities that participate exclusively in the deep-set fishery would be approximately 29 and 33 percent less than under no action in 2016 and 2017, respectively. Average annual ex-vessel revenues (from all species) per mt of bigeye tuna caught during 2005-2008 were about $14,332/mt (in 2015 dollars, derived from the latest available annual report on the pelagic fisheries of the western Pacific Region (Western Pacific Regional Fishery Management Council, 2016, Pelagic Fisheries of the Western Pacific Region: 2013 Annual Report. Honolulu, Western Pacific Fishery Management Council). If there are 128 active vessels in the fleet, as there were during 2005-2008, on average, then under the no-action scenario of fleet-wide annual catches of 5,000 mt, each vessel would catch 39 mt/yr, on average. Reductions of 29 percent and 33 percent in 2016 and 2017, respectively, as a result of the limits would be about 11 mt and 13 mt, respectively. Applying the average ex-vessel revenues (from all species) of $14,332 per mt of bigeye tuna caught, the reductions in ex-vessel revenue per vessel would be $162,000 and $185,000, on average, for 2016 and 2017, respectively.

In the shallow-set fishery, affected entities would bear limited costs in the event of the limit being reached (but most affected entities also participate in the deep-set fishery and might bear costs in that fishery, as described below). The cost would be about equal to the revenues lost from not being able to retain or land bigeye tuna captured while shallow-setting in the Convention Area, or the cost of shifting to shallow-setting in the eastern Pacific Ocean (EPO), which is to the east of 150 degrees W. longitude, whichever is less. In the fourth calendar quarters of 2005-2008, almost all shallow-setting effort took place in the EPO, and 97 percent of bigeye tuna catches were made there, so the cost of a bigeye tuna fishery closure to shallow-setting vessels would appear to be very limited. During 2005-2008, the shallow-set fishery caught an average of 54 mt of bigeye tuna per year from the Convention Area. If the bigeye tuna catch limit is reached even as early as July 31 in 2016 or 2017, the Convention Area shallow-set fishery would have caught at that point, based on 2005-2008 data, on average, 99 percent of its average annual bigeye tuna catches. Imposition of the landings restriction at that point in 2016 or 2017 would result in the loss of revenues from approximately 0.5 mt (1 percent of 54 mt) of bigeye tuna, which, based on recent ex-vessel prices, would be worth no more than $5,000. Thus, expecting about 26 vessels to engage in the shallow-set fishery (the annual average in 2005-2013), the average of those potentially lost annual revenues would be no more than $200 per vessel. The remainder of this analysis focuses on the potential costs of compliance in the deep-set fishery.

It should be noted that the impacts on affected entities' profits would be less than impacts on revenues when considering the costs of operating vessels, because costs would be lower if a vessel ceases fishing after the catch limit is reached. Variable costs can be expected to be affected roughly in proportion to revenues, as both variable costs and revenues would stop accruing once a vessel stops fishing. But affected entities' costs also include fixed costs, which are borne regardless of whether a vessel is used to fish—e.g., if it is tied up at the dock during a fishery closure. Thus, profits would likely be adversely impacted proportionately more than revenues.

As stated previously, actual compliance costs for a given entity might be less than the upper bounds described above, because ceasing fishing would not necessarily be the most profitable alternative opportunity when the catch limit is reached. Two alternative opportunities that are expected to be attractive to affected entities include: (1) Deep-set longline fishing for bigeye tuna in the Convention Area in a manner such that the vessel is considered part of the longline fishery of American Samoa, Guam, or the CNMI; and (2) deep-set longline fishing for bigeye tuna and other species in the EPO. These two opportunities are discussed in detail below. Four additional opportunities are: (3) Shallow-set longline fishing for swordfish (for deep-setting vessels that would not otherwise do so), (4) deep-set longline fishing in the Convention Area for species other than bigeye tuna, (5) working in cooperation with vessels operating as part of the longline fisheries of the Participating Territories—specifically, receiving transshipments at sea from them and delivering the fish to the Hawaii market, and (6) vessel repair and maintenance. A study by NMFS of the effects of the WCPO bigeye tuna longline fishery closure in 2010 (Richmond, L., D. Kotowicz, J. Hospital and S. Allen, 2015, Monitoring socioeconomic impacts of Hawai`i's 2010 bigeye tuna closure: Complexities of local management in a global fishery, Ocean & Coastal Management 106:87-96) did not identify the occurrence of any alternative activities that vessels engaged in during the closure, other than deep-setting for bigeye tuna in the EPO, vessel maintenance and repairs, and granting lengthy vacations to employees. Based on those findings, NMFS expects that alternative opportunities (3), (4), (5) and (6) are probably unattractive relative to the first two alternatives, and are not discussed here in any further detail. NMFS recognizes that vessel maintenance and repairs and granting lengthy vacations to employees are two alternative activities that might be taken advantage of if the fishery is closed, but no further analysis of their mitigating effects is provided here.

Before examining in detail the two potential alternative fishing opportunities that would appear to be the most attractive to affected entities, it is important to note that under the rule, once the limit is reached and the WCPO bigeye tuna fishery is closed, fishing with longline gear both inside and outside the Convention Area during the same trip would be prohibited (except in the case of a fishing trip that is in progress when the limit is reached and the restrictions go into effect). For example, after the restrictions go into effect, during a given fishing trip, a vessel could be used for longline fishing for bigeye tuna in the EPO or for longline fishing for species other than bigeye tuna in the Convention Area, but not for both. This reduced operational flexibility would bring costs, since it would constrain the potential profits from alternative opportunities. Those costs cannot be quantified.

A vessel could take advantage of the first alternative opportunity (deep-setting for bigeye tuna in a manner such that the vessel is considered part of the longline fishery of one of the three U.S. Participating Territories), by three possible methods: (a) Landing the bigeye tuna in one of the three Participating Territories, (b) holding an American Samoa Longline Limited Access Permit, or (c) being considered part of a Participating Territory's longline fishery, by agreement with one or more of the three Participating Territories under the regulations implementing Amendment 7 to the Pelagics FEP (50 CFR 665.819). In the first two circumstances, the vessel would be considered part of the longline fishery of the Participating Territory only if the bigeye tuna were not caught in the portion of the U.S. EEZ around the Hawaiian Islands and were landed by a U.S. vessel operating in compliance with a permit issued under the regulations implementing the Pelagics FEP or the Fishery Management Plan for U.S. West Coast Fisheries for Highly Migratory Species.

With respect to the first method of engaging in alternative opportunity 1 (1.a.) (landing the bigeye tuna in one of the Participating Territories), there are three potentially important constraints. First, whether the fish are landed by the vessel that caught the fish or by a vessel to which the fish were transshipped, the costs of a vessel transiting from the traditional fishing grounds in the vicinity of the Hawaiian Archipelago to one of the Participating Territories would be substantial. Second, none of these three locales has large local consumer markets to absorb substantial additional landings of fresh sashimi-grade bigeye tuna. Third, transporting the bigeye tuna from these locales to larger markets, such as markets in Hawaii, the U.S. west coast, or Japan, would bring substantial additional costs and risks. These cost constraints suggest that this alternative opportunity has limited potential to mitigate the economic impacts of the rule on affected small entities.

The second method of engaging in the first alternative opportunity (1.b.) (having an American Samoa Longline Limited Access Permit), would be available only to the subset of the Hawaii longline fleet that has both Hawaii and American Samoa longline permits (dual permit vessels). Vessels that do not have both permits could obtain them if they meet the eligibility requirements and pay the required costs. For example, the number of dual permit vessels increased from 12 in 2009, when the first WCPO bigeye tuna catch limit was established, to 20 in both 2011 and 2012. The previously cited NMFS study of the 2010 fishery closure (Richmond et al. 2015) found that bigeye tuna landings of dual permit vessels increased substantially after the start of the closure on November 22, 2010, indicating that this was an attractive opportunity for dual permit vessels, and suggesting that those entities might have benefitted from the catch limit and the closure.

The third method of engaging in the first alternative opportunity (1.c.) (entering into an Amendment 7 agreement), was also available in 2011-2015 (in 2011-2013, under section 113(a) of Public Law 112-55, 125 Stat. 552 et seq., the Consolidated and Further Continuing Appropriations Act, 2012, continued by Public Law 113-6, 125 Stat. 603, section 110, the Department of Commerce Appropriations Act, 2013; hereafter, “section 113(a)”). As a result of agreements that were in place in 2011-2014, the WCPO bigeye tuna fishery was not closed in any of those four years because the annual limit for U.S. longline fisheries adopted by the WCPFC was not reached. In 2015 the fishery was closed in August but then reopened when agreements with the CNMI, and later with Guam, went into effect. Participation in an Amendment 7 agreement would likely not come without costs to fishing businesses. As an indication of the possible cost, the terms of the agreement between American Samoa and the members of the Hawaii Longline Association (HLA) in effect in 2011 and 2012 included payments totaling $250,000 from the HLA to the Western Pacific Sustainable Fisheries Fund, equal to $2,000 per vessel. It is not known how the total cost was allocated among the members of the HLA, so it is possible that the owners of particular vessels paid substantially more than or less than $2,000.

The second alternative opportunity (2) (deep-set fishing for bigeye tuna in the EPO), would be an option for affected entities only if it is allowed under regulations implementing the decisions of the Inter-American Tropical Tuna Commission (IATTC). Annual longline bigeye tuna catch limits have been in place for the EPO in most years since 2004. Since 2009, a bigeye tuna catch limit of 500 mt for 2016 has applied to U.S. longline vessels greater than 24 meters (m) in length (50 CFR 300.25), and the limits were reached in 2013 (November 11), 2014 (October 31), and 2015 (August 12). The highly seasonal nature of bigeye tuna catches in the EPO and the relatively high inter-annual variation in catches prevents NMFS from making a useful prediction of whether and when the limit in 2016 is likely to be reached. However, the trend in 2013-2015 suggests a relatively high likelihood of it being reached in 2016. If it is reached, this alternative opportunity would not be available for large longline vessels, which constitute about a quarter of the fleet. Currently there is no limit in place for 2017; the IATTC would have to take further action to adopt a limit for 2017, and NMFS would then need to implement it to put it into effect.

Historical fishing patterns can provide an indication of the likelihood of affected entities making use of the opportunity of deep-setting in the EPO in the event of a closure in the WCPO. The proportion of the U.S. fishery's annual bigeye tuna catches that were captured in the EPO from 2005 through 2008 ranged from 2 percent to 22 percent, and averaged 11 percent. In 2005-2007, that proportion ranged from 2 percent to 11 percent, and may have been constrained by the IATTC-adopted bigeye tuna catch limits established by NMFS (no limit was in place for 2008). Prior to 2009, most of the U.S. annual bigeye tuna catch by longline vessels in the EPO typically was made in the second and third quarters of the year; in 2005-2008 the percentages caught in the first, second, third, and fourth quarters were 14, 33, 50, and 3 percent, respectively. These data demonstrate two historical patterns—that relatively little of the bigeye tuna catch in the longline fishery was typically taken in the EPO (11 percent in 2005-2008, on average), and that most EPO bigeye tuna catches were made in the second and third quarters, with relatively few catches in the fourth quarter when the catch limit will most likely be reached. These two patterns suggest that there could be substantial costs for at least some affected entities that shift to deep-set fishing in the EPO in the event of a closure in the WCPO. On the other hand, fishing patterns since 2008 suggest that a substantial shift in deep-set fishing effort to the EPO could occur. In 2009, 2010, 2011, 2012, 2013, and 2014, the proportions of the fishery's annual bigeye tuna catches that were captured in the EPO were about 16, 27, 23, 19, 36, and 36 percent, respectively, and most bigeye tuna catches in the EPO were made in the latter half of the calendar years.

The NMFS study of the 2010 closure (Richmond et al. 2015) found that some businesses—particularly those with smaller vessels—were less inclined than others to fish in the EPO during the closure because of the relatively long distances that would need to be travelled in the relatively rough winter ocean conditions. The study identified a number of factors that likely made fishing in the EPO less lucrative than fishing in the WCPO during that part of the year, including fuel costs and the need to limit trip length in order to maintain fish quality and because of limited fuel storage capacity.

In addition to affecting the volume of landings of bigeye tuna and other species, the catch limits could affect fish prices, particularly during a fishery closure. Both increases and decreases appear possible. After a limit is reached and landings from the WCPO are prohibited, ex-vessel prices of bigeye tuna (e.g., that are caught in the EPO or by vessels in the longline fisheries of the three U.S. Participating Territories), as well as of other species landed by the fleet, could increase as a result of the constricted supply. This would mitigate economic losses for vessels that are able to continue fishing and landing bigeye tuna during the closure. For example, the NMFS study of the 2010 closure (Richmond et al. 2015) found that ex-vessel prices during the closure in December were 50 percent greater than the average during the previous five Decembers. (It is emphasized that because it was an observational study, neither this nor other observations of what occurred during the closure can be affirmatively linked as effects of the fishery closure.)

Conversely, a WCPO bigeye tuna fishery closure could cause a decrease in ex-vessel prices of bigeye tuna and other products landed by affected entities if the interruption in the local supply prompts the Hawaii market to shift to alternative (e.g., imported) sources of bigeye tuna. Such a shift could be temporary—that is, limited to 2016 and/or 2017—or it could lead to a more permanent change in the market (e.g., as a result of wholesale and retail buyers wanting to mitigate the uncertainty in the continuity of supply from the Hawaii longline fisheries). In the latter case, if locally caught bigeye tuna fetches lower prices because of stiffer competition with imported bigeye tuna, then ex-vessel prices of local product could be depressed indefinitely. The NMFS study of the 2010 closure (Richmond et al. 2015) found that a common concern in the Hawaii fishing community prior to the closure in November 2010 was retailers having to rely more heavily on imported tuna, causing imports to gain a greater market share in local markets. The study found this not to have been borne out, at least not in 2010, when the evidence gathered in the study suggested that few buyers adapted to the closure by increasing their reliance on imports, and no reports or indications were found of a dramatic increase in the use of imported bigeye tuna during the closure. The study concluded, however, that the 2010 closure caused buyers to give increased consideration to imports as part of their business model, and it was predicted that tuna imports could increase during any future closure. To the extent that ex-vessel prices would be reduced by this action, revenues earned by affected entities would be affected accordingly, and these impacts could occur both before and after the limit is reached, and as described above, possibly after 2017.

The potential economic effects identified above would vary among individual business entities, but it is not possible to predict the range of variation. Furthermore, the impacts on a particular entity would depend on both that entity's response to the rule and the behavior of other vessels in the fleet, both before and after the catch limit is reached. For example, the greater the number of vessels that take advantage—before the limit is reached—of the first alternative opportunity (1), fishing as part of one of the Participating Territory's fisheries, the lower the likelihood that the limit would be reached. The fleet's behavior in 2011 and 2012 is illustrative. In both those years, most vessels in the Hawaii fleet were included in a section 113(a) arrangement with the government of American Samoa, and as a consequence, the U.S. longline catch limit was not reached in either year. Thus, none of the vessels in the fleet, including those not included in the section 113(a) arrangements, were prohibited from fishing for bigeye tuna in the Convention Area at any time during those two years. The fleet's experience in 2010 (before opportunities under section 113(a) or Amendment 7 to the Pelagics FEP were available) provides another example of how economic impacts could be distributed among different entities. In 2010 the limit was reached and the WCPO bigeye tuna fishery was closed on November 22. As described above, dual permit vessels were able to continue fishing outside the U.S. EEZ around the Hawaiian Archipelago and benefit from the relatively high ex-vessel prices that bigeye tuna fetched during the closure.

In summary, based on potential reductions in ex-vessel revenues, NMFS has estimated that the upper bound of potential economic impacts of the rule on affected longline fishing entities could be roughly $162,000 per vessel, on average, in 2016 and $185,000 per vessel, on average, in 2017. The actual impacts to most entities are likely to be substantially less than those upper bounds, and for some entities the impacts could be neutral or positive (e.g., if one or more Amendment 7 agreements are in place in 2016 and 2017 and the terms of the agreements are such that the U.S. longline fleet is effectively unconstrained by the catch limits).

As indicated above, all affected entities are believed to be small entities, so small entities would not be disproportionately affected relative to large entities. Nor would there be disproportionate economic impacts based on home port.

Purse seine vessels would be impacted differently than longline vessels, but whether the impacts would be disproportional between the two gear types cannot be determined.

For the longline sector, as described above, there could be disproportionate impacts according to vessel type and size and the type of fishing permits held. A vessel with both a Hawaii Longline Limited Access Permit and an American Samoa Longline Limited Access Permit would be considered part of the American Samoa longline fishery (except when fishing in the U.S. EEZ around the Hawaiian Archipelago), so it would not be subject to the catch limits. Because the EPO bigeye tuna catch limit for 2016 applies only to vessels greater than 24 m in length, in the event that the WCPO bigeye tuna fishery is closed and the 500 mt limit is reached in the EPO, only vessels 24 m or less in length would be able to take advantage of the alternative opportunity of deep-setting for bigeye tuna in the EPO. On the other hand, smaller vessels can be expected to find it more difficult, risky, and/or costly to fish in the EPO during the relatively rough winter months than larger vessels. If there are any large entities among the affected entities, and if the vessels of the large entities are larger than those of small entities, then it is possible that small entities could be disproportionately affected relative to large entities.

NMFS has sought to identify alternatives that would minimize the rule's economic impact on small entities (“significant alternatives”). Taking no action could result in lesser adverse economic impacts than the action for affected entities in the purse seine and longline fisheries (but as described below, for some affected longline entities, the rule could be more economically beneficial than no-action), but NMFS has determined that the no-action alternative would be inconsistent with the United States' obligations under the Convention, and NMFS has rejected it for that reason. Alternatives identified for each of the three elements of the rule are discussed below.

NMFS has not identified any significant alternatives to the purse seine observer requirements that would comport with U.S. obligations to implement the Commission decisions regarding observer coverage.

NMFS considered in detail one set of alternatives to the restrictions on the use of FADs. Under CMM 2015-01, the United States could use either of two options in either of 2016 and 2017 (in addition to the three-month FAD closure periods in both years and the prohibition on FAD sets on the high seas in 2017). One option is a fourth-month FAD prohibition period, in October. The second option, which is part of this rule, is an annual limit of 2,522 FAD sets. The relative effects of the two options would depend on the total amount of fishing effort exerted by the U.S. purse seine fleet in the Convention Area in a given year. If total fishing effort is relatively high, an October FAD prohibition period would likely allow for more FAD sets than a limit of 2,522 FAD sets, and thus likely cause lesser adverse impacts. The opposite would be the case for relatively low levels of total fishing effort. For example, given the fleet's recent historical average FAD set ratio of 58 percent when FAD-setting is allowed (2010-2013), and assuming an even distribution of sets throughout the year, the estimated “breakeven” point between the two options is 6,502 total sets for the year. The levels of fishing effort in 2016 and 2017 are very difficult to predict; they will be determined largely by the level of participation in the fishery (number of vessels) and any limits imposed on fishing effort. Fishing effort in foreign zones and on the high seas in the SPTT Area is likely to be limited by the terms of arrangements under the SPTT. Fishing effort elsewhere in the Convention Area (e.g., in the U.S. EEZ and on the high seas outside the Treaty Area) will be constrained by any limits established by NMFS to implement the provisions of CMM 2015-01. NMFS has not yet established or proposed any such limits for 2016 or 2017, and cannot speculate what limits it might propose, but a point of reference are the limits that were in place in 2009-2015. Those limits applied to the Effort Limit Area for Purse Seine, or ELAPS, which consists of all areas of high seas and U.S. exclusive economic zone in the Convention Area between the latitudes of 20 °N. and 20 °S. The limits in 2009-2013 were 2,588 fishing days per year. The limits in 2014-2015 were 1,828 fishing days per year. With respect to numbers of vessels and allowable fishing effort limits under the SPTT, 2016 is an unusual year in that SPTT licenses for 2016 were not issued until March, and the number of licensed vessels (34 as of May 2016) is fewer than in recent years. Thus, there has been relatively little purse seine fishing effort to date in the Convention Area in 2016, and NMFS expects that total fishing effort in 2016 is likely to be less than 6,502 sets (the estimated breakeven point between the two options). For reference, the average number of sets made annually in 2010-2013, when an average of 38 vessels were active in the fishery, was 7,835. The average number of fishing days made annually in 2010-2013 was 8,030, so the average number of sets made per fishing day was 0.97. Predicting the situation for 2017 is even more difficult than for 2016, but current circumstances suggest that participation in 2017 could be less than in recent years. Also, because setting on FADs on the high seas will be prohibited in 2017 under this rule, the estimated breakeven point of 6,502 total sets applies not everywhere in the Convention Area, but only those portions that are not high seas. Assuming that about 10 percent of fishing effort takes place on the high seas, as in 2010-2013, the breakeven point for the Convention Area as a whole is about 7,224 total sets. Assuming 0.97 sets per fishing day, on average, as occurred in 2010-2013, this equates roughly to 7,371 fishing days. This is slightly less than the average annual fishing effort in 2010-2013 (7,835 sets; 8,030 fishing days), but again, given current circumstances and uncertainty surrounding the future of the SPTT, NMFS expects that total fishing effort in 2017 is likely to be less than that breakeven level. Based on the above expectations and assumptions for conditions in 2016 and 2017, a FAD prohibition period in October is likely to have greater adverse impacts on fishing businesses than an annual limit of 2,522 FAD sets, in both 2016 and 2017. After considering the objectives of CMM 2015-01, the expected economic impacts of both alternatives on U.S. fishing operations and the nation as a whole, and expected environmental and other effects, NMFS expects that for both 2016 and 2017, a limit of 2,522 FAD sets is likely to be somewhat more cost-effective than a FAD prohibition period in October. For this reason, NMFS has rejected the latter alternative.

NMFS has not identified any significant alternatives to this element of the rule, other than the no-action alternative.

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. NMFS has prepared small entity compliance guides for this rule, and will send the appropriate guide(s) to holders of permits in the relevant fisheries. The guides and this final rule also will be available at www.fpir.noaa.gov and by request from NMFS PIRO (see ADDRESSES).

For the reasons set out in the preamble, 50 CFR part 300 is amended as follows:

NMFS manages the Pacific sardine fishery in the U.S. EEZ off the Pacific coast (California, Oregon, and Washington) in accordance with the CPS FMP. Annual specifications published in the Federal Register establish the allowable harvest levels (i.e., overfishing limit (OFL)/ACL/HG) for each Pacific sardine fishing year. The purpose of this final rule is to implement these annual catch reference points for the 2016-2017 fishing year. This final rule adopts, without changes, the catch levels and restrictions that NMFS proposed in the rule published on May 26, 2016 (81 FR 33454), including an OFL and an ABC that takes into consideration uncertainty surrounding the current estimate of biomass for Pacific sardine in the U.S. EEZ off the Pacific coast.

The FMP and its implementing regulations require NMFS to set these annual catch levels for the Pacific sardine fishery based on the annual specification framework and control rules in the FMP. These control rules include the HG control rule, which, in conjunction with the OFL and ABC rules in the FMP, are used to manage harvest levels for Pacific sardine, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801 et seq. According to the FMP, the quota for the principal commercial fishery is determined using the FMP-specified HG formula. The HG formula in the CPS FMP is HG = [(Biomass−CUTOFF) * FRACTION * DISTRIBUTION] with the parameters described as follows:

As described above, the Pacific sardine HG control rule, the primary mechanism for setting the annual directed commercial fishery quota, includes a CUTOFF parameter which has been set as a biomass level of 150,000 mt. This amount is subtracted from the annual biomass estimate before calculating the applicable HG for the fishing year. Therefore, because this year's biomass estimate is below that value, the formula results in an HG of zero and therefore no Pacific sardine are available for the commercial directed fishery during the 2016-2017 fishing season.

At the April 2016 Council meeting, the Council's SSC approved, and the Council adopted, the “Assessment of the Pacific Sardine Resource in 2016 for U.S.A. Management in 2016-2017”, completed by NMFS Southwest Fisheries Science Center and the resulting Pacific sardine biomass estimate of 106,137 mt as the best available science for setting harvest specifications. Based on recommendations from its SSC and other advisory bodies, the Council recommended, and NMFS is implementing, an OFL of 23,085 mt, an ABC of 19,236 mt, and a prohibition on sardine catch unless it is harvested as part of either the live bait or tribal fishery or incidental to other fisheries for the 2016-2017 Pacific sardine fishing year. As additional management measures, the Council also recommended, and NMFS is implementing, an ACL of 8,000 mt and specifying that the incidental catch of Pacific sardine in other CPS fisheries be managed with the following automatic inseason actions to reduce the potential for both targeting and discard of Pacific sardine:

• An incidental allowance of 40 percent Pacific sardine per landing by weight in non-treaty CPS fisheries until a total of 2,000 mt of Pacific sardine are landed.

• When 2,000 mt are landed, the incidental per-landing allowance would be reduced to 30 percent until a total of 5,000 mt of Pacific sardine have been landed.

• When 5,000 mt have been landed, the incidental per-landing allowance would be reduced to 10 percent for the remainder of the 2016-2017 fishing year.

Because Pacific sardine is known to comingle with other CPS stocks, these incidental allowances allow for the continued prosecution of these other important CPS fisheries and reduce the potential discard of sardine. Additionally, non-CPS fisheries are allowed to retain up to 2 mt per landing of sardine harvested incidentally.

The NMFS West Coast Regional Administrator will publish a notice in the Federal Register announcing the date of attainment of any of the incidental catch levels described above and subsequent changes to allowable incidental catch percentages. Additionally, to ensure that the regulated community is informed of any closure, NMFS will also make announcements through other means available, including fax, email, and mail to fishermen, processors, and state fishery management agencies.

As explained in the proposed rule, 800 mt of the ACL are being set aside for tribal harvest use per a request from the Quinault Indian Nation.

Detailed information on the fishery and the stock assessment are found in the report “Assessment of the Pacific Sardine Resource in 2016 for U.S.A. Management in 2016-2017” (see FOR FURTHER INFORMATION CONTACT).

On May 26, 2016, NMFS published a proposed rule for this action and solicited public comments (81 FR 33454), with a public comment period that ended on June 10, 2016. NMFS received one comment letter—explained below—during the comment period. After consideration of the public comment, no changes were made from the proposed rule. For further background information on this action please refer to the preamble of the proposed rule. NMFS summarizes and responds below to the comment letter below.

Comment: The commenter expressed support for the prohibition on directed commercial sardine fishing, but is opposed to the proposed ACL level, and requested that NMFS instead set an ACL of no more than 1,000 mt to be divided among the live bait and tribal sectors, and to accommodate limited bycatch. The commenter expressed an opinion that the proposed ACL of 8,000 mt fails to follow the harvest control rule because the FMP states that the harvest rate should be zero when the biomass drops below the CUTOFF.

The comment also requested reconsideration of the sardine harvest control rule and other aspects of sardine management, including but not limited to the existing CUTOFF and Minimum Stock Size Threshold values. (These parameters, as well as other changes to the sardine harvest control rule and management mentioned by the commenter are beyond the scope of this rulemaking and will not be addressed below.)

Response: First, NMFS notes that the stock assessment for the 2016-2017 fishing year, as with each annual stock assessment, went through a multi-stage review process including being reviewed and discussed by the Council, and the Council's SSC, CPS management team, and CPS advisory subpanel to ensure that the best available science is utilized when calculating the biomass estimate. This year's biomass estimate used for the 2016-2017 specifications, along with the resulting OFL and ABC, was endorsed by the Council's SSC and NMFS as the best available science. Although this biomass estimate is still below the CUTOFF value, triggering the second year of the closure of the primary directed fishery, the estimate is slightly higher than last year's estimate.

NMFS disagrees that the ACL implemented in this rule is not in line with the FMP or that it fails to prevent overfishing or will “contribute to the continued decline of the sardine population to an overfished condition”. The ACL should be viewed in the context of the OFL for the northern subpopulation of Pacific Sardine of 23,085 mt and an ABC of 19,236 mt that takes into account scientific uncertainty surrounding the OFL. These reference limits were recommended by the Council based on the control rules in the FMP and were endorsed the Council's SSC. The commenter does not note disagreement with these levels. By definition, fishing could conceivably occur up to these levels and overfishing would not be occurring and therefore fishing would not be the cause of the stock moving towards an overfished state. An ACL of 8,000 mt is well below both the OFL and ABC, under which incidental catch of sardine will be managed, along with the multiple safeguards in place to keep the catch under that level, the management measures implemented by this rule are more than adequate to prevent exceeding the OFL.

In response to the commenter's opinion that overall harvest rate should be zero when the biomass drops below the 150,000 mt CUTOFF, NMFS notes that the FMP does not forbid incidental, live bait or tribal harvest in this situation. The reference provided by the commenter to of a harvest rate of zero is specific to the primary directed fishery; as explained above, this action sets the directed harvest rate at zero. Although the commenter states that the harvest rate in this situation should be zero, the commenter nevertheless also seems to agree that the FMP allows incidental, live bait, or tribal harvest if the directed harvest is set at zero. The commenter specifically cites the CPS FMP language that allows for live bait harvest when the estimated biomass drops below the CUTOFF. Additionally, although the commenter disagrees with setting the ACL at 8,000 mt because it would allow a harvest rate above zero percent (which the commenter argues would violate the FMP), the commenter supports an ACL of 1,000 mt (implying that the commenter recognizes that the FMP allows a harvest rate above zero percent).

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Fishery Conservation and Management Act, the NMFS Assistant Administrator has determined that this final rule is consistent with the CPS FMP, other provisions of the Magnuson-Stevens Fishery Conservation and Management Act, and other applicable law.

NMFS finds good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effectiveness for the establishment of these final harvest specifications for the 2016-2017 Pacific sardine fishing season. In accordance with the FMP, this rule was recommended by the Council at its meeting in April 2016, the contents of which were based on the best available new information on the population status of Pacific sardine that became available at that time. Making these final specifications effective on July 1 is necessary for the conservation and management of the Pacific sardine resource. The FMP requires a prohibition on directed fishing for Pacific sardine for the 2016-2017 fishing year because the sardine biomass is below the CUTOFF. The purpose of the CUTOFF in the FMP—and prohibiting directed fishing when the biomass drops below this level—is to protect the stock when biomass is low and provide a buffer of spawning stock that is protected from fishing and available for use in rebuilding the stock. A delay in the effectiveness of this rule for a full 30 days would not allow the implementation of this prohibition prior to the expiration of the closure of the directed fishery on July 1, 2016, which was imposed under the 2015-2016 annual specifications.

Delaying the effective date of this rule beyond July 1 would be contrary to the public interest because reducing Pacific sardine biomass beyond the limits set out in this action could decrease the sustainability of the Pacific sardine, as well as cause future harvest limits to be even lower under the harvest control rule, thereby reducing future profits of the fishery.

These final specifications are exempt from review under Executive Order 12866.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification. As a result, a regulatory flexibility analysis was not required and none was prepared.

This action does not contain a collection-of-information requirement for purposes of the Paper Reduction Act.

NMFS manages the groundfish fishery in the Bering Sea and Aleutian Islands management area (BSAI) according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The 2016 flathead sole, rock sole, and yellowfin sole CDQ reserves specified in the BSAI are 2,247 mt, 5,710 mt, and 15,808 mt as established by the final 2016 and 2017 harvest specifications for groundfish in the BSAI (81 FR 14773, March 18, 2016), and one flatfish exchange (81 FR 21482, April 12, 2016). The 2016 flathead sole, rock sole, and yellowfin sole CDQ ABC reserves are 4,842 mt, 11,528 mt, and 6,844 mt as established by the final 2016 and 2017 harvest specifications for groundfish in the BSAI (81 FR 14773, March 18, 2016), and one flatfish exchange (81 FR 21482, April 12, 2016).

The Yukon Delta Fisheries Development Association has requested that NMFS exchange 15 mt of flathead sole and 35 mt of yellowfin sole CDQ reserves for 50 mt of rock sole CDQ ABC reserve under § 679.31(d). Therefore, in accordance with § 679.31(d), NMFS exchanges 15 mt of flathead sole and 35 mt of yellowfin sole CDQ reserves for 50 mt of rock sole CDQ ABC reserves in the BSAI. This action also decreases and increases the associated total annual catches (TAC) and CDQ ABC reserves by the corresponding amounts. Tables 11 and 13 of the final 2016 and 2017 harvest specifications for groundfish in the BSAI (81 FR 14773, March 18, 2016), as revised by one flatfish exchange (81 FR 21842, April 12, 2016), are revised as follows:

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the flatfish exchange by the Yukon Delta Fisheries Development Association in the BSAI. Since these fisheries are currently open, it is important to immediately inform the industry as to the revised allocations. Immediate notification is necessary to allow for the orderly conduct and efficient operation of this fishery, to allow the industry to plan for the fishing season, and to avoid potential disruption to the fishing fleet as well as processors. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of June 20, 2016.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

This action is required by § 679.20 and is exempt from review under Executive Order 12866.