Federal Register Vol. 81, No.124,

The Office of Government Ethics (OGE) is issuing this interim final rule as mandated by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Sec. 701 of Pub. L. 114-74) (the 2015 Act), which further amended the Federal Civil Penalties Inflation Adjustment Act of 1990 (Pub. L. 101-410) (the Inflation Adjustment Act) to adjust for inflation the civil monetary penalties (CMPs) provided in the Ethics in Government Act of 1978 as amended, 5 U.S.C. appendix (the Ethics Act). As explained below, all of the Ethics Act CMPs are being raised in accordance with the formula set forth in the 2015 Act. These “catch-up” adjustments will improve the effectiveness of the Ethics Act CMPs and maintain their deterrent effect.

In revising the Inflation Adjustment Act, the 2015 Act requires Federal agencies to adjust the level of civil monetary penalties with an initial “catch-up” adjustment through an interim final rule. The 2015 Act also requires agencies to make subsequent annual inflationary adjustments of their CMPs. Under the 2015 Act, the interim final rule with the “catch-up” adjusted penalties must take effect by August 1, 2016. In the case of the Ethics Act CMPs, the effective date of this rulemaking regarding the “catch-up” adjustments is August 1, 2016.

OGE emphasizes that the increased civil monetary penalty amounts calculated under the 2015 Act are applicable only to civil penalties assessed after August 1, 2016 whose associated violations occurred after November 2, 2015, the date of enactment of the 2015 Act. Therefore, violations occurring on or before November 2, 2015, and assessments made on or before August 1, 2016 whose associated violations occurred after November 2, 2015, will continue to be subject to the civil monetary penalty amounts currently in effect. The modified OGE regulatory provisions will reflect the original, previously-adjusted and newly-adjusted Ethics Act CMP amounts. OGE will notify departments and agencies by memorandum of this rulemaking action and its effect.

There are five CMPs provided for in the Ethics Act, as amended inter alia by the 1989 Ethics Reform Act and the 2007 Honest Leadership and Open Government Act (HLOGA). Specifically, the law provides for civil penalties that can be assessed by an appropriate United States district court, based upon a civil action brought by the Department of Justice, for the following five types of violations: knowing and willful failure to file, report required information on, or falsification of a public financial disclosure report; knowing and willful breach of a qualified trust by trustees and interested parties; negligent breach of a qualified trust by trustees and interested parties; misuse of a public report; and violation of outside employment/activities provisions. See sections 102(f)(6)(C)(i) and (ii), 104(a), 105(c)(2) and 504(a) of the Ethics Act, 5 U.S.C. appendix, 102(f)(6)(C)(i) and (ii), 104(a), 105(c)(2) and 504(a). These penalties are reflected in 5 CFR 2634.701(b), 2634.702(a) and (b), and 2634.703 of OGE's executive branchwide financial disclosure regulation and 5 CFR 2636.104(a) of OGE's executive branchwide covered noncareer employee outside employment/activities regulation.

In a 1999 rulemaking, 64 FR 47095, Aug. 30, 1989, OGE made inflation adjustments to the Ethics Act civil monetary penalties. These adjustments were mandated by the Debt Collection Improvement Act of 1996, section 31001 of Pub. L. 104-134, 110 Stat. 1321, which revised the Inflation Adjustment Act to require Federal agencies to adjust certain statutory CMPs for inflation. Prior to the 1999 rulemaking, the Ethics Act CMPs were set by statute in the Ethics Reform Act of 1989. In the 1999 rulemaking, OGE increased the maximum civil monetary penalties for knowing and willful breach of a qualified trust by trustees and interested parties; misuse of a public report; and violation of outside employment/activities provisions from $10,000 to $11,000. OGE also increased the maximum civil monetary penalty for negligent breach of a qualified trust by trustees and interested parties from $5,000 to $5,500. In that same rulemaking, OGE adjusted the maximum civil monetary penalty for knowing and willful failure to file, report required information on, or falsification of a public financial disclosure report from $10,000 to $11,000; however, in the 2007 HLOGA, Congress statutorily increased that penalty to a maximum of $50,000. No further adjustments have been made to any of the Ethics Act CMPs described in this paragraph.

The Office of Government Ethics notes that it has previously determined, after consultation with the Department of Justice, that the $200 late filing fee for public financial disclosure reports that are more than 30 days overdue (see section 105(d) of the Ethics Act, 5 U.S.C. appendix, 105(d), and 5 CFR 2634.704 of OGE's regulations thereunder) is not a civil monetary penalty as defined under the Federal Civil Penalties Inflation Adjustment Act, as amended. Therefore, that fee is not being adjusted in this rulemaking (nor was it previously adjusted by OGE in the 1999 rulemaking), and will remain at its current amount of $200.

The “catch-up” adjustments to civil monetary penalties mandated by the 2015 Act are based on the percent change between the Consumer Price Index for all Urban Consumers (CPI-U) for the month of October in the year of the previous adjustment (not made under the Inflation Adjustment Act), and the October 2015 CPI-U. The inflation adjustments are to be rounded to the nearest dollar, and agencies may not increase penalty levels by more than 150 percent of the corresponding levels in effect on November 2, 2015. Subsequent annual adjustments for inflation mandated by the 2015 Act will be based on the percent change between the October CPI-U preceding the date of the adjustment, and the prior year's October CPI-U.

With the exception of the penalty for knowing and willful failure to file, report required information on, or falsification of a public financial disclosure report, 5 U.S.C. appendix, 104(a), 5 CFR 2634.701(b), all of the Ethics Act CMPs were last adjusted other than pursuant to the Inflation Adjustment Act by the 1989 Ethics Reform Act. (As discussed above, the adjustments made in the 1999 rulemaking were done pursuant to amendments to the Inflation Adjustment Act; the “catch-up” adjustment calculation established by the 2015 Act requires agencies to make adjustments based on when CMPs were established or last adjusted other than pursuant to the Inflation Adjustment Act.) For these CMPs, the adjusted penalties established by this rulemaking will be calculated by multiplying the penalty amount established by the 1989 Ethics Reform Act and 1.89361, the CPI-U multiplier for 1989. The penalty for knowing and willful failure to file, report required information on, or falsification of a public financial disclosure report was most recently adjusted by statute in 2007 by HLOGA. For this CMP, the adjusted penalty established by this rulemaking will be calculated by multiplying the penalty amount established by HLOGA and 1.13833, the CPI-U multiplier for 2007. None of these adjusted penalties are more than 150 percent of the corresponding levels in effect on November 2, 2015.

Applying the formula established by the 2015 Act, OGE is amending the Ethics Act CMPs to further increase the three previously-adjusted $11,000 maximum penalties reflected in 5 CFR 2634.702(a) and 2634.703 and 5 CFR 2636.104(a), to a maximum of $18,936; to increase the one previously-adjusted $5,500 maximum penalty reflected in 2634.702(b), to a maximum of $9,468; and to increase the one previously-adjusted $50,000 maximum penalty, reflected in 5 CFR 2634.701(b), to a maximum of $56,916. As noted above, these new amounts apply only to civil monetary penalties that are assessed after August 1, 2016 whose associated violations occurred after November 2, 2015.

The Office of Government Ethics will also make future adjustments to the Ethics Act CMPs in accordance with the statutory formula set forth in the 2015 Act, which provides for annual adjustments for inflation.

Pursuant to 5 U.S.C. 553(b), as General Counsel of the Office of Government Ethics, I find that good cause exists for waiving the general notice of proposed rulemaking and public comment procedures as to these technical amendments. The notice and comment procedures are being waived because these amendments, which concern matters of agency organization, procedure and practice, are being adopted in accordance with statutorily mandated inflation adjustment procedures of the 2015 Act, which specifies adoption through an interim final rulemaking. It is also in the public interest that the adjusted rates for civil monetary penalties under the Ethics in Government Act become effective as soon as possible in order to maintain their deterrent effect. However, OGE notes that, in order to provide an appropriate period for notification to executive branch departments and agencies and their employees, the effective date for this interim final rule is August 1, 2016.

As the designee of the Director of the Office of Government Ethics, I certify under the Regulatory Flexibility Act (5 U.S.C. chapter 6) that this interim final rule would not have a significant economic impact on a substantial number of small entities because it primarily affects current Federal executive branch employees.

The Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply because this regulation does not contain information collection requirements that require approval of the Office of Management and Budget.

For purposes of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. chapter 5, subchapter II), this rule would not significantly or uniquely affect small governments and will not result in increased expenditures by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (as adjusted for inflation) in any one year.

Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select the regulatory approaches that maximize net benefits (including economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rulemaking has been reviewed by the Office of Management and Budget, even though it is not deemed “significant” under section 3(f) of Executive Order 12866 since it is limited to the adoption of statutorily mandated inflation adjustments without interpretation.

As General Counsel of the Office of Government Ethics, I have reviewed this rule in light of section 3 of Executive Order 12988, Civil Justice Reform, and certify that it meets the applicable standards provided therein.

Accordingly, for the reasons set forth in the preamble, the Office of Government Ethics is amending 5 CFR parts 2634 and 2636 as follows:

The Agriculture Reauthorizations Act of 2015, Public Law 114-54, amended the USGSA (7 U.S.C. 71-87k) to require GIPSA to adjust fees for the supervision of official grain inspection and weighing in order to maintain an operating reserve of not less than 3 and not more than 6 months (7 U.S.C. 79(j)(4)).

GIPSA's reorganization efforts over the past 10 years have resulted in the centralization of supervision of delegated states and designated agencies. Due to this and other GIPSA cost reduction measures, the operating reserve of GIPSA's account for supervision of official inspection and weighing currently exceeds 6 months by a significant margin. Accordingly, GIPSA is issuing this document to announce the suspension of the fee for supervision of official inspection and weighing services of domestic grain and land carriers to Canada and Mexico performed by delegated States and/or designated agencies. According to the regulations under the USGSA, GIPSA may suspend any provision of the regulations in emergencies or other circumstances which would not impair the objectives of the USGSA (7 CFR 800.2). GIPSA has determined that suspending supervision fees will not impair the objectives of the USGSA because the operating reserve for supervision services is sufficient to maintain the service without additional funds.

GIPSA will no longer assess the fee of $0.011 per metric ton of domestic shipments officially inspected and/or weighed, including land carrier shipments to Canada and Mexico, performed by delegated States and/or designated agencies on or after July 1, 2016 (7 CFR 800.71 Schedule B). These fees will remain suspended for one year, at which time GIPSA will reassess the operating reserve for supervision of official agency inspection and weighing.

Official inspection agencies may no longer pass the suspended supervision fee on to their customers. Agencies which list GIPSA supervision fees as a line item on their fee schedules must eliminate the fee. Agencies which include supervision fees as a part of fees that they charge to their customers must either reduce fees by the amount of the suspended fee or provide justification and detailed cost information for retaining current fees. All agencies must submit revised fee schedules for GIPSA approval (7 CFR 800.70).

In order to improve the effectiveness of CMPs and to maintain their deterrent effect, the Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. 2461 note (“the Inflation Adjustment Act”), as further amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Public Law 114-74) (“the 2015 Act”), requires Federal agencies to adjust each CMP provided by law within the jurisdiction of the agency. The 2015 Act requires agencies to adjust the level of CMPs with an initial “catch-up” adjustment through an interim final rulemaking and to make subsequent annual adjustments for inflation notwithstanding 5 U.S.C. 553. The 2015 Act also provides that any increase in a CMP shall apply only to CMPs, including those whose associated violation predated such increase, which are assessed after the date the increase takes effect.

Pursuant to the 2015 Act, OMB issued a guidance memorandum on the implementation of the 2015 Act.1 This interim final rule is issued in accordance with applicable law and the OMB guidance memorandum.

The method of calculating CMP adjustments applied in this interim final rule is required by the 2015 Act. Under the 2015 Act, catch-up adjustments are based on the percent change between the Consumer Price Index for all Urban Consumers (CPI-U) for the month of October in the year of the previous adjustment, and the October 2015 CPI-U. Subsequent annual inflation adjustments are to be based on the percent change between the October CPI-U preceding the date of the adjustment, and the prior year's October CPI-U. Under the 2015 Act, any increase in CMP shall be rounded to the nearest multiple of $1.

The following list summarizes DOE authorities containing CMPs, and the penalties before and after adjustment. The list also identifies the year the original maximum and/or minimum penalty level was established or last adjusted, excluding any previous adjustments made under the Inflation Adjustment Act. Finally, the list provides the CPI-U adjustment multiplier.

On March 11, 2016, at 81 FR 12836, the Federal Register published our notice of proposed rulemaking (NPRM), which proposed to amend 14 CFR part 39 by adding an AD that would apply to Airbus Helicopters Model AS 365 N3 helicopters. The NPRM proposed to require inspecting the cabin and cockpit for labels, placards, or markings that provide jettison procedure instructions for cabin doors, removing any labels, placards, or markings that are in an incorrect location, and installing placards in the correct locations. The proposed requirements were intended to provide exit procedures during an emergency.

The NPRM was prompted by AD No. 2015-0068-E, dated April 29, 2015, issued by EASA, which is the Technical Agent for the Member States of the European Union, to correct an unsafe condition for the Airbus Helicopters Model AS 365 N3 helicopters without external life rafts installed, except those helicopters modified in accordance with Airbus Helicopters modification (MOD) 0711B68, and Model AS 365 N3 helicopters with external life rafts installed, except those helicopters modified in accordance Airbus Helicopters MOD 0711B67 and MOD 0711B68. EASA advises that during helicopter delivery after manufacturing, Airbus Helicopters identified that placards providing jettison procedure instructions for the cabin doors were not systematically installed or not installed in a proper location. This condition, if not corrected, could prevent the timely evacuation of the helicopter during an emergency. The EASA AD consequently requires determining whether any placards are missing or incorrectly located, installing any missing placards, and replacing any incorrectly located placards.

We gave the public the opportunity to participate in developing this AD, but we received no comments on the NPRM (81 FR 12836, March 11, 2016).

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

The EASA AD requires compliance within 14 days after the effective date of the EASA AD. This AD requires compliance within 50 hours time-in-service.

We reviewed Airbus Helicopters Alert Service Bulletin No. AS365-11.00.02, Revision 2, dated April 23, 2015 (ASB). The service information describes procedures for replacing and installing cabin internal evacuation markings. The ASB reports that deviations in the locations of the cabin internal evacuation markings and missing markings were noted during the delivery of new helicopters. The ASB provides instructions about the locations of, characteristics of, and information contained in the markings.

This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD affects 15 helicopters of U.S. Registry and that labor costs average $85 a work-hour. Based on these estimates, we expect that inspecting the helicopter to determine the proper location and presence of cabin door jettison procedure placards and replacing and installing them requires 4 work-hours and that parts cost $70. We estimate a total cost of $410 per helicopter, and $6,150 for the U.S. fleet.

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 helicopters 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 to the extent that it justifies making a regulatory distinction; and

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

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

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

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 Sanderson Field Airport, Shelton, WA.

On January 28, 2016, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to establish Class E airspace extending upward from 700 feet above the surface at Sanderson Field Airport, Shelton, WA (81 FR 4903) Docket FAA-2015-3994. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. One comment was received from Joseph Murphy, supporting the proposal.

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 designation 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 4-mile radius of the Sanderson Field Airport, Shelton WA, and that airspace within 1.5 miles either side of the airport 068° bearing extending from the 4-mile radius to 5 miles northeast of the airport, and that airspace within 2.3 miles either side of the airport 248° bearing extending from the 4-mile radius to 9.5 miles southwest of the airport. This airspace is established to accommodate new Standard Instrument Approach Procedures developed for the safety and management of Instrument Flight Rules (IFR) operations at the airport.

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

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

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

Background

On March 24, 2016, the Bureau of Industry and Security (BIS) published a final rule, Temporary General License (81 FR 15633). The March 24 final rule amended the EAR by adding Supplement No. 7 to part 744 to create a Temporary General License that returned, until June 30, 2016, the licensing and other policies of the EAR regarding exports, reexports, and transfers (in-country) to Zhongxing Telecommunications Equipment (ZTE) Corporation and ZTE Kangxun to that which were in effect prior to their addition to the Entity List on March 8, 2016. Details regarding the scope of the listing are at 81 FR 12004 (Mar. 8, 2016), (“Additions to the Entity List”). Details regarding the Temporary General License can be found in the March 24 final rule and in Supplement No. 7 to Part 744—Temporary General License.

BIS issued the March 24 final rule in connection with a request to remove or modify the listing. The March 24 final rule specified that the temporary general license was renewable if the U.S. Government determined, in its sole discretion, that ZTE Corporation and ZTE Kangxun were timely performing their undertakings to the U.S. Government and otherwise cooperating with the U.S. Government in resolving the matter which led to the two entities' listing.

At this time, the U.S. Government has decided to extend the temporary general license until August 30, 2016. In order to implement this U.S. Government decision, this final rule revises the temporary general license to remove the date June 30, 2016, and substitute the date of August 30, 2016. This final rule makes no other changes to the EAR.

Although the Export Administration Act expired on August 20, 2001, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as amended by Executive Order 13637 of March 8, 2013, 78 FR 16129 (March 13, 2013) and as extended by the Notice of August 7, 2015, 80 FR 48233 (August 11, 2015), has continued the Export Administration Regulations in effect under the International Emergency Economic Powers Act. BIS continues to carry out the provisions of the Export Administration Act, as appropriate and to the extent permitted by law, pursuant to Executive Order 13222, as amended by Executive Order 13637.

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

2. Notwithstanding any other provision of law, no person is required to respond to nor be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This regulation involves collections previously approved by OMB under control number 0694-0088, Simplified Network Application Processing System, which includes, among other things, license applications and carries a burden estimate of 43.8 minutes for a manual or electronic submission. Total burden hours associated with the PRA and OMB control number 0694-0088 are not expected to increase as a result of this rule. You may send comments regarding the collection of information associated with this rule, including suggestions for reducing the burden, to Jasmeet K. Seehra, Office of Management and Budget (OMB), by email to [email protected], or by fax to (202) 395-7285.

3. This rule does not contain policies with Federalism implications as that term is defined in Executive Order 13132.

4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public comment, and a delay in effective date are inapplicable because this regulation involves a military or foreign affairs function of the United States. (See 5 U.S.C. 553(a)(1)). If this rule were delayed to allow for notice and comment and a delay in effective date, then the national security and foreign policy objectives of this rule would be harmed. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule by 5 U.S.C. 553, or by any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are not applicable. Accordingly, no regulatory flexibility analysis is required and none has been prepared.

Accordingly, part 744 of the Export Administration Regulations (15 CFR parts 730 through 774) is amended as follows:

The final and temporary regulations (TD 9770) that are the subject of this correction are under section 337(d) of the Internal Revenue Code.

As published, the final and temporary regulations (TD 9770) contain an error that may prove to be misleading and is in need of clarification.

Accordingly, 26 CFR part 1 is corrected by making the following correcting amendment:

The Outer Continental Shelf Lands Act (OCSLA) directs the Secretary of the Interior to adjust the OCSLA maximum civil penalty amount at least once every three years to reflect any increase in the Consumer Price Index (CPI) to account for inflation. (43 U.S.C. § 1350(b)(1). The Federal Civil Penalties Inflation Adjustment Act of 1990 (Pub. L. 104-410) (FCPIA of 1990) required that all civil monetary penalties, including the OCSLA maximum civil penalty amount, be adjusted at least once every 4 years. Pursuant to OCSLA and the FCPIA of 1990, the OCSLA maximum civil penalty amount was last adjusted in 2011. (76 FR 38294, June 30, 2011). In 2014 and 2015, BSEE performed computations to determine if it should increase the current OCSLA maximum civil penalty amount to account for inflation. After running the computations, BSEE determined that adjustments of the OCSLA maximum civil penalty amount were not warranted in 2014 and 2015.

On November 2, 2015, the President signed into law the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Sec. 701 of Public Law 114-74) (FCPIA of 2015). The FCPIA of 2015 requires Federal agencies to adjust the level of civil monetary penalties with an initial “catch-up” adjustment, if warranted, through rulemaking, and then to make subsequent annual adjustments for inflation. The purpose of these adjustments is to maintain the deterrent effect of civil penalties and to further the policy goals of the underlying statutes.

Pursuant to OCSLA and the FCPIA of 2015, this rule adjusts the following maximum civil monetary penalty per day per violation:

The OMB issued guidance on calculating the civil monetary penalty adjustments pursuant to the FCPIA of 2015. (February 24, 2016, Memorandum for the Heads of Executive Departments and Agencies, from Shaun Donovan, Director, Office of Management and Budget, re: Implementation of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015.) Under this guidance, the Department of the Interior has identified applicable civil monetary penalties and calculated the necessary adjustments. A civil monetary penalty is any assessment with a dollar amount that is levied for a violation of a Federal civil statute or regulation, and is assessed or enforceable through a civil action in Federal court or an administrative proceeding. A civil monetary penalty does not include a penalty levied for violation of a criminal statute, or fees for services, licenses, permits, or other regulatory review activities. The calculated adjustment is based on the percent change between the CPI for all Urban Consumers for the month of October in the year of the previous adjustment (or in the year of establishment, if no adjustment has been made) and the October 2015 CPI.

For 2016, OCSLA and the FCPIA of 2015 required that BSEE adjust the OCSLA maximum civil penalty amount and provide for timing of the adjustment. In computing the new OCSLA maximum civil penalty amount, since BSEE last adjusted that amount in 2011, BSEE divided the October 2015 CPI by the October 2011 CPI (237.8/226.4). This resulted in a multiplying factor of 1.05042. The existing maximum civil penalty amount ($40,000) was then multiplied by the multiplying factor (40,000 × 1.05042 = 42,016.8). The FCPIA of 2015 requires that the OCSLA maximum civil penalty amount be rounded to the nearest $1.00 at the end of the calculation process. Accordingly, the adjusted OCSLA maximum civil penalty is $42,017. This new OCSLA maximum civil penalty amount does not exceed 150 percent of the OCSLA maximum civil penalty amount as of November 2, 2015, as stipulated by the FCPIA of 2015. Also, pursuant to the FCPIA of 2015, the increase in the OCSLA maximum civil penalty amount applies to civil penalties assessed after the date the increase takes effect, even when the associated violation(s) predate such increase.

Executive Order (E.O) 12866 provides that the Office of Information and Regulatory Affairs in the OMB will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant.

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

The Regulatory Flexibility Act (RFA) requires an agency to prepare a regulatory flexibility analysis for all rules unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The RFA applies only to rules for which an agency is required to first publish a proposed rule. (See 5 U.S.C 603 (a) and 604 (a).) The Federal Civil Penalties Adjustment Act of 2015 requires agencies to adjust civil penalties with an initial catch-up adjustment through an interim final rule. An interim final rule does not include first publishing a proposed rule. Thus the RFA does not apply to this rulemaking.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:

(1) Will not have an annual effect on the economy of $100 million or more.

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

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

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

This rule will not affect a taking of private property or otherwise have takings implications under E.O. 12630. A takings implication assessment is not required.

Under the criteria in section 1 of E.O. 13132, this rule will not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. A federalism summary impact statement is not required.

This rule complies with the requirements of E.O. 12988. Specifically, this rule:

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

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

The Department of the Interior strives to strengthen its government-to-government relationship with Indian tribes through a commitment to consultation with Indian tribes and recognition of their right to self-governance and tribal sovereignty. We have evaluated this rule under the Department of the Interior's consultation policy, under Departmental Manual Part 512 Chapters 4 and 5, and under the criteria in E.O. 13175, and have determined that it has no substantial direct effects on federally recognized Indian tribes and that, consultation under the Department of the Interior's tribal consultation policy is not required.

This rule does not contain information collection requirements, and a submission to the OMB under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.) is not required. We may not conduct or sponsor, and you are not required to respond to, a collection of information unless it displays a currently valid OMB control number.

This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 (NEPA) is not required because the rule is covered by a categorical exclusion (see 43 CFR 46.210(i).) This rule is excluded from the requirement to prepare a detailed statement because it is a regulation of an administrative nature. We have also determined that the rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA.

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

We are required by E.O.s 12866 (section 1(b)(12)), 12988 (section 3(b)(1)(B)), and 13563 (section 1(a)), and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

(1) Be logically organized;

(2) Use the active voice to address readers directly;

(3) Use common, everyday words and clear language rather than jargon;

(4) Be divided into short sections and sentences; and

(5) Use lists and tables wherever possible.

If you feel that we have not met these requirements, send us comments by one of the methods listed in the ADDRESSES section. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that you find unclear, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

The FCPIA of 2015 requires agencies to publish interim final rules by July 1, 2016, with an effective date for the adjusted penalties of no later than August 1, 2016. To comply with the FCPIA of 2015, we are issuing these regulations as an interim final rule and are requesting comments post-promulgation. The Administrative Procedure Act (APA) provides that, when an agency for good cause finds that “notice and public procedure . . . are impracticable, unnecessary, or contrary to the public interest,” the agency may issue a rule without providing notice and an opportunity for prior public comment (5 U.S.C. 553(b).) BSEE finds that there is good cause to promulgate this rule without first providing the public comment. It would not be possible to meet the deadlines imposed by the FCPIA of 2015 if we were to first publish a proposed rule, allow the public sufficient time to submit comments, analyze the comments, and publish a final rule. Also, BSEE is promulgating this interim final rule to implement the statutory directive in the FCPIA of 2015, which requires agencies to publish an interim final rule and to update the civil penalty amounts by applying a specified formula. BSEE has no discretion to vary the amount of the adjustment to reflect any views or suggestions provided by commenters, so notice and comment is unnecessary. Accordingly, it would serve no purpose to provide an opportunity for pre-promulgation public comment on this rule.

Thus, BSEE finds pre-promulgation notice and public comment to be impracticable and unnecessary.

For the reasons given in the preamble, the Bureau of Safety and Environmental Enforcement amends Title 30, Chapter II, Subchapter B, Part 250 Code of Federal Regulations as follows.

The TAP prepares all eligible members of the Military Services for a transition to civilian life; enables eligible Service members to meet the CRS as required by this rule; and is the overarching program that provides transition assistance, information, training, and services to eligible transitioning Service members to prepare them to be career ready when they transition back to civilian life.

Spouses of eligible Service members are entitled to the DOLEW, job placement counseling, DoD/VA-administered survivor information, financial planning assistance, transition plan assistance, VA-administered home loan services, housing assistance benefits information, and counseling on responsible borrowing practices. Dependents of eligible Service members are entitled to career change counseling and information on suicide prevention.

These revisions will:

• Institutionalize the implementation of the VOW Act of 2011,

• require mandatory participation in the Department of Labor (DOL) Employment Workshop (EW),

• implement the Transition GPS (Goals, Plans, Success) curriculum,

• require development of an Individual Transition Plan (ITP),

• enhance tracking of attendance at TAP events,

• implement of mandatory Career Readiness Standards (CRS) for separating Service members, and

• incorporate a CAPSTONE event to document transition readiness and reinforce Commanding Officer accountability and support for the needs of individual Service members.

This rule improves the process of conducting transition services for eligible separating Service members across the Military Services and establishes the data collection foundation to build short-, medium-, and long-term program outcomes.

In August 2011, President Obama announced his comprehensive plan to ensure that all of America's Post 9/11 Veterans have the support they need and deserve when they leave the military, look for a job, and enter the civilian workforce. A key part of the President's plan was his call for a “career-ready military.” Specifically, he directed DoD and Department of Veterans Affairs (VA) to work closely with other federal agencies and the President's economic and domestic policy teams to lead a Veterans Employment Initiative Task Force to develop a new training and services delivery model to help strengthen the transition readiness of Service members from military to civilian life. Shortly thereafter, Congress passed and the President signed the “VOW to Hire Heroes Act of 2011,” Public Law 112-56, 201-265, 125 Stat. 715 (“VOW Act”), which included steps to improve the existing TAP for Service members. Among other things, the “VOW Act” made participation in several components of TAP mandatory for all Service members (except in certain limited circumstances).

The task force delivered its initial recommendations to the President in December 2011, which required implementation of procedures to document Service member participation, and to demonstrate Military Service compliance with 10 U.S.C. Chapter 58 requirements. The Veterans Opportunity to Work (VOW) Act of 2011 mandated transitioning Service members participation in receiving counseling and training on VA Benefits. VA developed VA Benefits I and II Briefings to meet this mandate. The VOW Act also mandated transitioning Service members to received counseling and informed of services regarding employment assistance. The Department of Labor revised its' curriculum to meet this mandate with the Department of Labor Employment Workshop. The VOW requirements have been codified in 10 U.S.C. Chapter 58 and attendance at all Transition GPS curricula is now documented.

The redesigned TAP was developed around four core recommendations:

Adopt standards of career readiness for transitioning Service members. Service members should leave the military having met clearly defined standards of career readiness.

Implement a revamped TAP curriculum. Service members should be provided with a set of value-added, individually tailored training programs and services to equip them with the set of tools they need to pursue their post-military goals successfully.

Implement a “CAPSTONE”. Service members should be afforded the opportunity, shortly before they depart the military, to review and verify that they have met the CRS and received the services they desire and to be steered to the resources and benefits available to them as Veterans.

Implement a “Military Life Cycle” (MLC) transition model. Transition preparation for Service members should occur over the entire span of their military careers—not just in the last few months of their military service.

Implementation of these recommendations transforms a Service member' experience during separating, retiring, demobilizing, or deactivating to make the most informed career decisions by equipping them with the tools they need to make a successful transition.

The rule discusses a redesigned program which implements, the transition-related provisions of the “VOW Act” and recommendations of the Task Force to offer a tailored curriculum providing Service members with useful and quality instruction with connections to the benefits and resources available to them as Veterans. At the heart of the redesign is the new set of CRS. Just as Service members must meet military mission readiness standards while on Active Duty, Service members will meet CRS before their transition to civilian life.

As part of the regulatory process, DOD is required to develop a regulatory impact analysis (RIA) for rules with costs or benefits exceeding $100M annually. DOD estimates implementation of this final rule for the Department will have a cost of approximately $100M annually starting in 2016. DoD assumes that the annual outlays will continue.

In President Obama's speech in August of 2011 at the Washington Navy Yard, he used the term `Reverse Boot Camp' to demonstrate his vision for a redesigned TAP to increase the preparedness of Service members to successfully transition from military service to civilian communities. The President's speech initiated an interagency discussion on an approach to mirror the Military Services' “basic or initial entry training” programs. This approach would require the Military Services to devote approximately 9 to 13 weeks, depending on curriculum development, outcome measures, assessments and individual military readiness and cultural differences, to afford Service members the opportunity to use all aspects of a rigorous transition preparation program.

While no cost estimates were conducted, this approach was deemed to be both expensive and potentially jeopardize DoD's ability to maintain mission readiness. Approximately 200,000-250,000 Service members leave DoD each year. To concentrate on transition preparation during the last 9 to 13 weeks of an individual's military career would not be workable since mission readiness could not absorb the impact of the void. Additionally, there would be an increased expense required to activate or mobilize Reserve Component or National Guard personnel for the nine to 13 weeks prior to transition. Finally, logistical challenges could result from Service members dealing with TAP requirements while deployed. For example, units scheduled to mobilize would be delayed because a returning unit could occupy facilities (such as billeting, classrooms, and training areas) that the deploying units needed to train and prepare for mobilization.

A second alternative considered was establishment of regional residential transition centers staffed by personnel from all Military Services, the Departments of VA, Labor (DOL), and Homeland Security (U.S. Coast Guard), the U.S. Small Business Administration (SBA), and the OPM. Transitioning Service members would be sent on temporary duty for a period of four to six weeks, 12 months prior to their separation or retirement date to receive transition services. Eligible Reserve Component Service members would be assigned to the centers as a continuation of their demobilization out-processing. The potential costs to build or modify existing facilities, or rent facilities that would meet regional residential transition center requirements, as well as costs for Service member travel to and from the regional centers, reduced the viability of this approach.

A third, less expensive option would have left the existing TAP program intact without increasing counselor and curriculum facilitation resources. This option would not have accountability systems and procedures to demonstrate compliance with the “VOW Act” that mandates preseparation counseling, attendance at the DOL's three day Employment Workshop (DOLEW), and attendance at two VA briefings. Due to increasing Veteran unemployment and homeless percentages at the time of the decision, and the rebalancing of the military force, this cost neutral approach would not have the outcome-based capability intended to develop career ready skills in transitioning Service members. This option, which would not have met the requirements of the law, would cost the Military Services approximately $70M versus the fiscal year 2013 (FY13) $122M for the implementation of the re-designed TAP.

The “VOW Act” mandated preseparation counseling, VA Benefits Briefings I and II, and the DOLEW, and these components were implemented on November 21, 2012. On the same day, the “VOW Act” requirements became mandatory; DoD published a policy to make CRS and Commanding Officer verification that Service members are meeting CRS, mandatory. “Vow Act” compliance and CRS must be met by all Service members after they have served 180 days in active duty status. Service members must attend Transition GPS (Goals, Plans, Success) curriculum modules that build career readiness if they cannot meet the CRS on their own. In cases where Service members receive a punitive or Under Other Than Honorable Conditions discharge, Commanding Officers have the discretion of determining participation in the other than mandatory Transition GPS curricula. By policy, all Service members who do not meet the CRS will receive a warm handover to DOL, VA, or other resources targeted at improving career readiness in the area where the standard was not met.

The entire Transition GPS curriculum is now available online through Joint Knowledge Online (JKO); however, Service members must attend preseparation counseling, VA briefings, and the DOLEW in person. All other curricula can be accessed through the JKO virtual platform. The virtual curriculum (VC) was launched at the beginning of FY14. DoD expected a cost savings in FY14 due to use of the VC but the cost avoidance cannot be calculated, as VC utilization is appropriate on a Service member-by-Service member basis.

Further, resource requirements for DoD become more predictable when transition assistance is provided at pre-determined points throughout the MLC TAP model, mitigating the impacts of “surge” periods when large numbers of Service members separate, demobilize or deactivate.

The FY13 cost to DoD to implement the TAP redesign was $122M and in FY14 DoD costs were $85M. The difference is attributed to both implementation costs of the updated program in FY13 and to efficiencies discovered as implementation was completed throughout FY14. These costs represent only the portion of the interagency program that is paid by the DoD. The cost covers Defense civilian and contracted staff (FTEs) salaries and benefits at 206 worldwide locations. Civilian and contract labor account for approximately 88% of total program costs in both fiscal years. The remaining costs include equipment, computers (purchase, maintenance and operations), Information Technology (IT) and architecture, data collection and sharing, Web site development, performance evaluation and assessments, curriculum development and modifications, materials (audio-visual, CDs, eNotebooks, handouts, interactive brick and mortar classroom sessions, virtual curriculum, etc.), facilitation training, research, studies, and surveys. Within DoD, the re-designed TAP capitalized upon existing resources, e.g., use of certified financial planners housed in the Military Services' family centers to conduct financial planning or military education counselors used to conduct the Accessing Higher Education (AHE) track. Other efficiencies include reuse or upgrades to current facilities and classrooms used to deliver legacy TAP. Implementation costs in FY13 included equipping classrooms to allow individual internet access and train-the-trainer workshops to deliver the DoD portions of the Transition GPS curriculum. Examples of efficiencies discovered in FY14 include providing train-the-trainer courses through webinars and savings associated with Service members using the VC.

The DoD provides military spouses the statutory requirements of TAP as prescribed in Title 10, United States Code. Other elements of TAP, prescribed by DoD policy, are available to spouses if resources and space permits. Military spouses can attend the “brick and mortar” Transition GPS curriculum at no cost on a nearby military installation. They can also take the entire Transition GPS curriculum online, virtually, at any time, from anywhere with a computer or laptop for free.

Many Veteran and Military Service Organizations, employers, and local communities provide transition support services to local installations. Installation commanders are strongly encouraged to permit access to Veteran Service Organizations (VSOs) and Military Service Organizations (MSOs) to provide transition assistance-related events and activities in the United States and abroad at no cost to the government. Two memos signed by Secretary of Defense Chuck Hagel reinforce such access. The memos are effective within 60 days of the December 23 signing, and will remain in effect until the changes are codified within DoD.1 Access to installations is for the purpose of assisting Service members with their post-military disability process and transition resources and services. The costs to VSOs and MSOs would be any costs associated with salaries for paid VSO and MSO personnel. These organizations will pay for any costs associated with travel to and from military installations, as well as any materials they provide to separating Service members and their spouses. Costs to employers and community organizations supporting transition-related events and activities would be similar to those for VSOs and MSOs.

The DoD is dependent upon other federal agencies to deliver the redesigned TAP to transitioning Service members. The VA, DOL, SBA, Department of Education (ED), and Office of Personnel Management (OPM) have proven to be invaluable partners in supporting the Transition GPS curriculum development and delivery, and in providing follow-on services required by a warm handover due to unmet CRS. These interagency partners strongly support TAP governance and performance measurement.

Although DoD cannot estimate the costs for its interagency partners, TAP provides the Service members with resources through the contributions of its interagency partners that should be identified as factors of total program cost. Transition assistance is a comprehensive interagency effort with contributions from every partner leveraged to provide support to the All-Volunteer Force as the Service members prepare to become Veterans. The interagency partners deliver the Transition GPS curriculum and one-on-one services across 206 military installations across the globe. DoD can only speak to TAP costs within the Defense fence line, but can discuss the value provided by interagency partners.

The DOL provides skilled facilitators that deliver the DOLEW, a mandatory element of the Transition GPS standardized curriculum. DOL's American Jobs Centers (AJCs) provide integral employment support to transitioning Service members and transitioned Veterans. The AJCs are identified as resources for the Service members during TAP, which may increase visits from the informed Service members. The AJCs also support warm handovers of Service members who have identified employment as a transition goal on their ITP but do not meet the CRS for employment. DOL also provides input to the TAP interagency working groups and governance boards, and is involved in the data collection, performance measurement, and standardization efforts, all of which represent costs to the organization.

The SBA provides the Transition GPS entrepreneurship track, Boots to Business, to educate transitioning Service members interested in starting their own business about the challenges small businesses face. Upon completing the Boots to Business track, the SBA allows Service members to access the SBA on-line entrepreneurship course, free of charge. The SBA then provides Service members the opportunity to be matched to a successful businessperson as a mentor. This is a tremendous commitment that must create additional costs for the SBA. The SBA offices continue to provide support to Veterans as they pursue business plan development or start up loans; provision of this support is in the SBA's statutory charter, but the increased awareness provided through the Transition GPS curriculum is likely to increase the patronage and represent a cost to SBA. The SBA also provides input to the TAP interagency working groups and governance boards. The SBA is engaged with data collection and sharing efforts to determine program outcomes.

VA provides facilitators who deliver the mandatory VA Benefits Briefings I and II as part of the Transition GPS standardized curriculum required to meet “VOW Act” requirements. The VA facilitators also deliver the two-day track for Career Technical Training that provides instruction to Service members to discern the best choices of career technical training institutions, financial aid, best use of the Post 9/11 GI Bill. Benefits counselors deliver one-on-one benefits counseling on installations, as space permits. As a primary resource for Veterans, VA ensures benefits counselors are able to accept warm handovers of transitioning Service members who do not meet CRS and require VA assistance post-separation. The VA hosts a web portal for connectivity between employers and transitioning Service members, Veterans and their families. VA provides input to the TAP interagency working groups and governance boards, and is involved in the data collection and sharing efforts to determine program outcomes, all of which represent costs to the organization.

ED serves a unique and highly valued role in the interagency partnership by ensuring the entire curriculum, both in classroom and virtual platform delivery, is based on adult learning principles. Their consultative role, tapped daily by the interagency partners, is critical to a quality TAP. ED also provides input to the TAP interagency working groups and governance boards and keeps a keen eye toward meaningful TAP outcomes, all of which represent costs to the organization.

The OPM contributes federal employment information and resources to the DOLEW, and enables the connectivity between the VA's web portal and USA Jobs Web sites. The OPM also provides input to the TAP interagency working groups and governance boards and contributes to performance measures.

The costs to DoD's interagency partners were not calculated; implementation of this rule was mandated by the “Vow Act” and costs for all parties are already incurred. The calculated costs to DoD and unmeasured costs to DoD's interagency partners provide significant resources to Service members, resulting in benefits to the Nation.

The benefit of the redesigned TAP to the Service member is increased career readiness to obtain employment, start their own business, or enter career technical training or an institution of higher learning at the point of separation from military service. The legacy, end-of-career TAP is replaced by pre-determined opportunities across the MLC for many transition-related activities to be completed during the normal course of business. Since a direct economic estimate of the value of TAP is difficult for DoD to demonstrate as it would require collection of information from military personnel after they become private citizens, the value of the TAP can be derived by demonstrating qualitatively how Service members value the program and then displaying some changes in economic variables that can be differentiated between Veterans who have access to TAP and non-Veterans who do not have access to the program.

According to a curriculum assessment completed at the end of each TAP module, transitioning Service members gave the TAP positive reviews on its usefulness for their job search:

The TAP also helps mitigate the adjustment costs associated with labor market transition. Military members must prepare for the adjustments associated with losing military benefits (e.g., housing, health care, childcare) to the benefits afforded in private sector or nonmilitary public sector jobs. The TAP addresses this very important aspect based on a regulatory mandate that they attend both the DOLEW and the VA's Veterans Benefits Briefings, and complete a 12-month post-separation financial plan to meet CRS.

The early alignment of military skills with civilian workforce demands and deliberate planning for transition throughout a Service member's career sets the stage for a well-timed flow of Service members to our Nation's labor force. Employers state that transitioning Service members have critical job-related skills, competencies, and qualities including the ability to learn new skills, strong leadership qualities, flexibility to work well in teams or independently, ability to set and achieve goals, recognition of problems and implementation of solutions, and ability to persevere in the face of obstacles. However, application of these skills and attributes must be translated into employer friendly language. The TAP addresses these issues. The VA web portal supports providing private and public sector employers with a direct link to profiles and resumes of separating Service members where employers can recruit from this talent pipeline.

The rule benefits communities across the country. Civilian communities receive more educated, better-trained and more prepared citizens when separating Service members return to communities as Veterans. Service members learn to align their military skills with civilian employment opportunities, which enables the pool of highly trained, adaptable, transitioning Service members a more timely integration into the civilian workforce and local economies. Service members also learn through TAP about the rich suite of resources available to them from the interagency partners and have, for the asking, one-on-one appointments with interagency partner staff, who can provide assistance to Service members and their families both before and after the Service members leave active duty. More specifically, the components of the mandatory CRS target deliberate planning for financial preparedness as well as employment, education, housing and transportation plans and, for those Service members with families, childcare, schools, and spouse employment. The DoD and interagency partners incorporated the warm handover requirement for any transitioning Service member who does not meet the CRS. The warm handover is meant to serve as an immediate bridge from DoD to the federal partners' staffs, which are committed to providing needed support, resources and services to Service members post separation in the communities to which the Service members are returning. The intention is to provide early intervention before Veterans encounter the challenges currently identified by some communities, e.g., financial struggles, unemployment, lack of social supports that can spiral down into homelessness, risk taking behaviors. Families and communities benefit.

The Task Force established expectations for program performance measures and outcomes. The redesigned TAP Interagency Executive Council and Senior Steering Group laid the preliminary groundwork to measure long-term program outcomes. While DoD is statutorily limited to measure outcomes while Service members are active duty, DoD performance measures are intended to demonstrate outcomes of the TAP redesign within DoD. These include the verified number of Service members separated from active duty who meet “VOW Act” mandates and who meet CRS prior to separation. At the end of fiscal year 2015, based on the DD Form 2958 data received by the Defense Manpower Data Center, 93.9% of Service members separating from Active Duty met “VOW Act” requirements and 89% met CRS or received a warm handover to an appropriate partner agency.

These measures set the stage for future long-term measures when transitioning Service members become Veterans. The DoD's TAP Information Technology (IT) architecture and data collection processes enable future data sharing with our Federal partners to show program effectiveness. The DoD requires the interagency support of its partners to further develop and collect data to define a relationship between TAP attendance, “VOW Act” compliance and CRS and long-term outcome measures, e.g. optimal use of Post 9/11 GI Bill benefits and long-term earnings of Post 9/11 Veterans.

The Department of Defense published an interim final rule in the Federal Register titled “Transition Assistance Program (TAP) for Military Personnel” on November 30, 2015 (80 FR 74678-74694) for a 45-day public comment period. The Department of Defense received one public comment, which is addressed in this preamble.

Comment: The comment from the Students Veterans of America (SVA) addressed two specific areas: (1) SVA wants to gain access to military installations for current student veterans and SVA chapter leaders, and potentially chapter advisors, to act as liaisons to institutes of higher learning and trusted information intermediaries for current Service members considering whether higher education is their preferred path, and if so, what opportunities they should pursue; and (2) SVA believes they are strong subject matter experts to provide feedback on the current Accessing Higher Education (AHE) curriculum and to help develop in-person or online training for base education advisors (EAs). Additionally, SVA wants to provide information about SVA chapters and peer support. SVA also requests to have the program implementation data updated for a more comprehensive picture of implementation of the AHE curriculum and they want to know the results of feedback mechanisms on the effectiveness of AHE's implementation. Finally, the SVA identifies several outstanding issues they want addressed concluding with its desire to have a SVA representative to the interagency curriculum working group.

SBA would like to have significant data to report and they want to make the data public, in order to better analyze what is working. They want to have top-line reporting on attendance and completion rate figures related to TAP and AHE. In addition, they want to know what barriers exist, and how those barriers may be addressed. SVA thinks there should be consideration of an assessment of the veterans' education readiness. Finally, SVA wants to know how decisions are being made by the interagency working group regarding TAP, as well as how policy disagreements are resolved between agencies, specifically on issues involving curriculum.

Response: The DoD is committed to providing military personnel from across the Services access to the TAP. The Secretary of Defense issued policy guidance and procedures in his memorandum, “Installation Access and Support Services to VA-Recognized Veteran Service Organizations/Military Service Organizations” dated December 23, 2014. The decision to provide access to military installations rests with local commanders. The SVA is encouraged to follow those procedures. The responsibility for acting as liaisons to institutes of higher learning falls under the purview of the Office of the Deputy Assistant Secretary of Defense for Force Education and Training. It does not fall under the purview of the TAP. SVA is encouraged to work with that office to pursue discussion regarding this issue.

The Department appreciates feedback from non-governmental external stakeholders. However, it must abide by law and policy when receiving any comments and conducting any interaction with any non-federal entity.

This rule is part of DoD's retrospective plan, completed in August 2011, under Executive Order 13563, ”Improving Regulation and Regulatory Review.” DoD's full plan and updates can be accessed at http://www.regulations.gov/#!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=DOD-2011-OS-0036.

As required by Executive Order (E.O.) 13563, DoD intends to conduct periodic reviews along with its partner agencies to modify, or repeal, aspects, as appropriate, and after public notice and comment. DoD expects to conduct a review no later than five years from the publication of this final rule. With regard to a number of aspects of this rule, possible modifications will be considered based on public comments and related internal studies. DoD intends to synthesize and review available data to include publically available information on transition assistances related matters. For example, how many veterans use their Post-9/11 GI Bill, how many complete a degree, how long does it take a veteran to find employment following separation from the military? Following this, DoD may propose modifications to the current provisions of the existing rule.

Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distribute impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This final rule has been designated an “economically significant regulatory action,” under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget (OMB) under the requirements of these Executive Orders.

Under the Congressional Review Act, a major rule may not take effect until at least 60 days after submission to Congress of a report regarding the rule. A major rule is one that would have an annual effect on the economy of $100 million or more or have certain other impacts. This final rule is a major rule under the Congressional Review Act.

Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4) requires agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. In 2014, that threshold is approximately $141 million. This rule will not mandate any requirements for State, local, or tribal governments, nor will it affect private sector costs.

The DoD certifies that this final rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities. Therefore, the Regulatory Flexibility Act, as amended, does not require us to prepare a regulatory flexibility analysis.

It has been determined that this rule does not impose reporting or recordkeeping requirements under the Paperwork Reduction Act of 1980.

Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. This final rule will not have a substantial effect on State and local governments.

Accordingly, the interim final rule published at 80 FR 74678-74694 on November 30, 2015, is adopted as a final rule with the following changes:

I. Table of Abbreviations DHS Department of Homeland Security NPRM Notice of proposed rulemaking II. Background Information and Regulatory History

The Coast Guard is issuing this final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because we did not receive notice of this event until May 20, 2016. It is therefore, impracticable to publish a NPRM because this rule must be implemented by July 4, 2016, to ensure the safety of spectators and the general public during this event.

For the same reason discussed above, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register.

The legal basis for the rule is the Coast Guard's authority to establish regulated navigation areas and other limited access areas: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.

The purpose of the rule is to provide for the safety of life on the navigable waters of the United States during the 4th of July Firework Celebration.

On July 4, 2016, the Key West Rotary Club is hosting the 4th of July Firework celebration. The event will consist of approximately 45 Minutes of fireworks in Key West Harbor with an estimated 150 spectator vessels.

This rule establishes a safety zone that will encompass certain navigable waters of the Key West Harbor. The safety zone will be enforced from 6 p.m. until 10:30 p.m. on July 4, 2016.

Persons and vessels may request authorization to enter the special local regulated area by contacting the Captain of the Port Key West by telephone at (305) 433-0954 or (305) 292-8727 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 special local regulated area is granted by the Captain of the Port Key West or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port Key West or a designated representative.

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

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of 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 safety zone will be enforced for four and a half hours; (2) the safety zone will be short in duration with no prolonged waterway impact; (3) although persons and vessels will not be able to enter, transit through, anchor in, or remain within the safety zone without authorization from the Captain of the Port Key West or a designated representative, they may operate in the surrounding areas during the enforcement period; (4) persons and vessels may still enter, transit through, anchor in, or remain within the safety zone during the enforcement period if authorized by the Captain of the Port Key West or a designated representative; and (5) the Coast Guard will provide advance notification of the safety zone to the local maritime community by Marine Safety Information Bulletin, and Broadcast Notice to Mariners.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule 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 owners or operators of vessels intending to enter, transit through, anchor in, or remain within any of the regulated area during the respective enforcement period. For the reasons discussed in the 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 above.

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

This rule 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 expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves the creation of a safety zone that will be enforced from 6 p.m. until 10:30 p.m. on July 4, 2016. It is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. 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 165 as follows:

On June 4, 2016, the Coast Guard was notified by the event sponsor that the date of this annual fireworks display was rescheduled to accommodate the weekend dates of the Independence Day Holiday for 2016. The time of the annual fireworks display remains unchanged. The Coast Guard will enforce the safety zone in 33 CFR 165.506 from 8:30 p.m. until 10:30 p.m. on July 1, 2016, for the Town of Chesapeake Beach, MD fireworks display. This action is being taken to provide for the safety of life on navigable waterways during this event. Our regulation for Recurring Marine Events within the Fifth Coast Guard District, § 165.506, specifies the location of the regulated area for this safety zone as two circular shaped areas that include all waters of the Chesapeake Bay, within a 150 yard radius of the fireworks barge at latitude 38°41′36″ N., longitude 076°31′30″ W. and a 150 yard radius of the fireworks barge at latitude 38°41′28″ N., longitude 076°31′29″ W., located near Chesapeake Beach, Maryland. As specified in § 165.506(d), during the enforcement period, no vessel may not enter, remain in, or transit through the safety zone without approval from the Captain of the Port (COTP) or a COTP designated representative. The Coast Guard may be assisted by other Federal, state or local law enforcement agencies in enforcing this regulation. If the COTP or his designated on-scene Patrol Commander determines the regulated area need not be enforced for the full duration stated in this notice, a Broadcast Notice to Mariners may be used to grant general permission to enter the regulated area.

This notice of enforcement is issued under authority of 33 CFR 165.506 (d) and 5 U.S.C. 552 (a). In addition to this notice of enforcement in the Federal Register, the Coast Guard will provide notification of this enforcement period via the Local Notice to Mariners and marine information broadcasts.

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule due to it being impracticable and contrary to the public interest. Due to the sensitive security issues related to the Republican National Convention, providing a public notice and comment period would be contrary to the security zone's intended objective of protecting VIPs and the public, because we cannot share the sensitive security information details prior to the rule being published.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. Any delay encountered in this temporary rule's effective date would be contrary to the public interest given the need to ensure the safety and security of the event and participating members during the Republican National Convention from July 15, 2016 through July 22, 2016.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Buffalo has determined that potential hazards associated with this event are a security concern surrounding the area. These hazards include potential security threats, violent or disruptive public disorder, delivery of a weapon of mass destruction, launch of a stand-off attack weapon, or delivery of an armed assault force. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the security zone through various times throughout the event.

Additionally, the Coast Guard believes that, given the nature of the First Amendment activity expected and the likely type of vessels used by individuals desiring to express their First Amendment rights—namely kayaks and other small vessels—safety zones designating a voluntary First Amendment Area is necessary to ensure the safety of those vessels and persons who choose to express their views safely and without interference from, or interfering with, other maritime traffic.

From July 17, 2016 through July 22, 2016 the Republican National Convention will be held in Cleveland, Ohio. The Primary venue for the 2016 Republican National Convention is Quicken Loans Arena, which is adjacent or proximate to the Cuyahoga River. Secondary venues and venues hosting convention-related activities include the Great Lakes Science Center, Burke Lakefront Airport, the Rock and Roll Hall of Fame and Museum, and other locations near downtown Cleveland on or in close proximity to navigable waters located on the Cuyahoga River and the portion of Lake Erie adjacent to the downtown Cleveland area. The security zones and safety zones will cover all navigable waters within the Cleveland Harbor surrounding the Burke Lakefront Airport and Rock and Roll Hall of Fame and Museum to the entrance of the Cuyahoga River and from the entrance of the Cuyahoga River to waters extending past the George V. Voinovich Bridge. The duration of the security zones and safety zone are intended to protect personnel, vessels, and the marine environment in these navigable waters while the convention and related activities are taking place. No vessel or person will be permitted to enter the security zones without obtaining permission from the Captain of the Port (COTP) or a designated representative.

The Secretary of the Department of Homeland Security has designated the 2016 Republican National Convention as a National Special Security Event (NSSE). NSSE's are significant events, which, due to their political, economic, social, or religious significance, may render them particularly attractive targets of terrorism or other criminal activity. The Federal government provides support, assistance, and resources to state and local governments to ensure public safety and security during NSSE's.

The Coast Guard has conducted threat, vulnerability, and risk analyses relating to the maritime transportation system and 2016 Republican National Convention activities. Threats confronting the 2016 Republican National Convention assume two primary forms: homeland security threats and violent or disruptive public disorder. Each of the locations described above are directly adjacent to Lake Erie or the Cuyahoga River and therefore make them vulnerable to waterborne threats. Considerable law enforcement presence on land may render maritime approaches a viable alternative. The City of Cleveland has critical infrastructure in its port area, which is proximate to the downtown area and the Convention's main venues. The Port of Cleveland is an industrial-based port, with significant storage and shipment of hazardous materials. Therefore, with regard to homeland security threats, the 2016 Republican National Convention presents an attractive target for terrorist and extremist organizations.

The Department of Homeland Security Small Vessel Security Strategy sets forth several threat scenarios that must be mitigated in the maritime security planning for the 2016 Republican Convention. These threats include the potential use of a small vessel to: (1) Deliver a weapon of mass destruction; (2) launch a stand-off attack weapon; or (3) deliver an armed assault force. The 2016 Republican National Convention maritime security planning anticipates these threats, while minimizing the public impact of security operations.

The security zones, safety zones, and accompanying security measures have been specifically developed to mitigate the risk of threats and vulnerabilities identified in the analysis discussed above. These measures have been limited to the minimum necessary to mitigate risks associated with the identified threats.

While the Coast Guard is concerned about any security threats to the areas described above, the Coast Guard is likewise committed to ensuring that individuals who wish to express their opinions on any issue during the 2016 Republican National Convention have the means to do so in a manner that protects them and other vessels operating on Lake Erie and the Cuyahoga River. Therefore, the Coast Guard is also establishing two safety zones located northwest of the Rock and Roll Hall of Fame and Museum and on the Western side of the entrance to the Cuyahoga River, wherein the Coast Guard will allow demonstrators or any individual who wishes to express their views. These areas are being established to allow individuals expressing their views the means to do so in a safe manner to their intended audience without posing an undue risk to maritime safety. After analyzing maritime traffic patterns and other environmental factors, the Coast Guard is requiring that any persons or vessels permitted to operate within the safety zones shall travel at the minimum speed necessary to maintain a safe course. The navigation rules shall apply at all times within the safety zones.

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 individuals First Amendment rights.

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

This regulatory action determination is based on the size, location, duration, and time of year of the security zone and safety zone. Vessel traffic will be able to safely transit around the security zones and safety zone; the zones will impact a small designated area and will be enforced only during the event and event-related activities. The security zones and safety zone will be in a location where commercial vessel traffic is expected to be minimal during enforcement; commercial vessel traffic will be authorized to transit the security zones to the extent compatible with public safety and security. Persons and vessels will be able to operate in the surrounding area adjacent to the security zones and safety zone during the enforcement period, and will be able to enter within the security zones if authorized by the Captain of the Port Buffalo or a designated representative. Moreover, the Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zones.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves security zones and a safety zone enforced intermittently between July 15, 2016 through July 22, 2016 that will prohibit entry within the waters surrounding the Burke Lakefront Airport, Rock and Roll Hall of Fame, and portions of the Cuyahoga River. It is categorically excluded from further review under paragraph 34(g) 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 individuals' First Amendment rights. Individuals wishing to exercise First Amendment Rights are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate First Amendment 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 165 as follows:

The Coast Guard will enforce the safety zone for fireworks in the Delaware River in Philadelphia, PA listed in 33 CFR 165.506, in Section (a), Line (16) of the Table from 8 p.m. until 10 p.m. on June 15, 2016, and July 1, 2016, through July 4, 2016. This action is being taken to provide for the safety of life on navigable waterways during the fireworks display. Our regulation for Recurring Marine Events in Captain of the Port Delaware Bay Zone, § 165.506, specifies the location of the regulated area for this safety zone as all waters of Delaware River, adjacent to Penn's Landing, Philadelphia, PA, bounded from shoreline to shoreline, bounded on the south by a line running east to west from points along the shoreline at latitude 39°56′31.2″ N, longitude 075°08′28.1″ W; thence to latitude 39°56′29″.1 N, longitude 075°07′56.5″ W, and bounded on the north by the Benjamin Franklin Bridge.

As specified in §  165.506, during the enforcement period no vessel may transit this safety zone without approval from the Captain of the Port Delaware Bay (COTP). 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 165.506 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 advanced notification of this enforcement period via Broadcast Notice to Mariners (BNM). If the COTP, Delaware Bay, determines that the regulated area need not be enforced for the full duration, a BNM to grant general permission to enter the safety zone will be used.

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

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the Coast Guard received notice on June 8, 2016 that this fireworks display would take place. After receiving and fully reviewing the event information, circumstances, and exact location, the Coast Guard determined that a safety zone is necessary to protect personnel, vessels, and the marine environment from potential hazards created from a barge-based fireworks display on the navigable waterway. It would be impracticable to complete the full NPRM process for this safety zone because it needs to be established by July 9, 2016. The fireworks display has been advertised and the local community has prepared for the event.

We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the Federal Register. Delaying this rule would be contrary to public interest of ensuring the safety of spectators and vessels during the event. Immediate action is necessary to prevent possible loss of life and property during the hazards created by a barge-based fireworks display.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Pittsburgh (COTP) has determined that a safety zone is needed on July 9, 2016. This rule is needed to protect personnel, vessels, and the marine environment from potential hazards created from a barge-based fireworks display.

This rule establishes a safety zone on July 9, 2016 from 8:30 p.m. until 10:30 p.m. The safety zone will cover all navigable waters on the Allegheny River, Monongahela River, and Ohio River from mile 0.0-0.5 on each of the three rivers. The duration of the safety zone is intended to protect personnel, vessels, and the marine environment from potential hazards created from a barge-based firework display. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

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

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

This regulatory action determination is based on the size, location, and duration of the safety zone. This safety zone impacts a small portion of the waterway on each of the three rivers and for a limited duration of two hours. Vessel traffic will be informed about the safety zone through local notices to mariners. Moreover, the Coast Guard will issue broadcast botices to mariners via VHF-FM marine channel 16 about the zone and the rule allows vessels to seek permission to transit the zone.

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

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

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

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

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

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

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

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such 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 safety zone lasting two hours that will prohibit entry to the Allegheny River, Monongahela River, and Ohio River from mile 0.0-0.5 on each of the three rivers, during the barge-based firework event. It is categorically excluded from further review under paragraph 34 (g) 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 165 as follows:

On November 2, 2015, the Federal Civil Penalties Inflation Adjustment Improvement Act (the 2015 Act), Public Law 114-74, Section 701, was signed into law. The purpose of the 2015 Act is to improve the effectiveness of civil monetary penalties and to maintain their deterrent effect. The 2015 Act requires agencies to make an initial catch up adjustment to the civil monetary penalties they administer through an interim final rule and then to make subsequent annual adjustments for inflation. The amount of increase of any adjustment to a civil penalty pursuant to the 2015 Act is limited to 150 percent of the current penalty. Agencies are required to issue the interim final rule with the initial catch up adjustment by July 1, 2016.

The method of calculating inflationary adjustments in the 2015 Act differs substantially from the methods used in past inflationary adjustment rulemakings conducted pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990 (the Inflation Adjustment Act), Public Law 101-410. Previously, adjustments to civil penalties were conducted under rules that required significant rounding of figures. For example, a penalty increase that was greater than $1,000, but less than or equal to $10,000, would be rounded to the nearest multiple of $1,000. While this allowed penalties to be kept at round numbers, it meant that penalties would often not be increased at all if the inflation factor was not large enough. Furthermore, increases to penalties were capped at 10 percent. Over time, this formula caused penalties to lose value relative to total inflation.

The 2015 Act has removed these rounding rules; now, penalties are simply rounded to the nearest $1. While this creates penalty values that are no longer round numbers, it does ensure that penalties will be increased each year to a figure commensurate with the actual calculated inflation. Furthermore, the 2015 Act “resets” the inflation calculations by excluding prior inflationary adjustments under the Inflation Adjustment Act, which contributed to a decline in the real value of penalty levels. To do this, the 2015 Act requires agencies to identify, for each penalty, the year and corresponding amount(s) for which the maximum penalty level or range of minimum and maximum penalties was established (i.e., originally enacted by Congress) or last adjusted by statute or regulation other than pursuant to the Inflation Adjustment Act.

The Director of the Office of Management and Budget (OMB) provided guidance to agencies in a February 24, 2016 memorandum on how to calculate the initial adjustment required by the 2015 Act.1 The initial catch up adjustment is based on the change between the Consumer Price Index for all Urban Consumers (CPI-U) for the month of October in the year the penalty amount was established or last adjusted by Congress and the October 2015 CPI-U. The February 24, 2016 memorandum contains a table with a multiplier for the change in CPI-U from the year the penalty was established or last adjusted to 2015. To arrive at the adjusted penalty the agency must multiply the penalty amount when it was established or last adjusted by Congress, excluding adjustments under the Inflation Adjustment Act, by the multiplier for the increase in CPI-U from the year the penalty was established or adjusted provided in the February 24, 2016 memorandum. The 2015 Act limits the initial inflationary adjustment to 150 percent of the current penalty. To determine whether the increase in the adjusted penalty is less than 150 percent, the agency must multiply the current penalty by 250 percent. The adjusted penalty is the lesser of either the adjusted penalty based on the multiplier for CPI-U in Table A of the February 24, 2016 memorandum or an amount equal to 250 percent of the current penalty. This interim final rule adjusts the civil penalties for violations of statutes and regulations that SLSDC administers consistent with the February 24, 2016 memorandum.

The Ports and Waterways Act of 1972, as amended by the Ports and Tanker Safety Act, Public Law 95-474, sec. 2, Oct. 17, 1978, 92 Stat. 1471 (1978), established a maximum civil penalty of $25,000 for each violation of the Seaway Rules and Regulations at 33 CFR part 401. This civil penalty has not been updated since it was established, except for inflationary adjustments pursuant to the Inflation Adjustment Act of 1990. Applying the multiplier for the increase in CPI-U for 1978 in Table A of the February 24, 2016 memorandum (3.54453) results in an adjusted civil penalty of $88,613, which is below the 150 percent cap Accordingly, paragraph (a) of § 401.102 is being amended to change the amount of the penalty to $88,613.

SLSDC is promulgating this interim final rule to ensure that the civil penalties amount contained in 33 CFR 401.102 reflects the statutorily mandated ranges as adjusted for inflation. Pursuant to the 2015 Act, SLSDC is required to promulgate a “catch-up adjustment” through an interim final rule. Pursuant to the 2015 Act and 5 U.S.C. 553(b)(3)(B), SLSDC finds that good cause exists for immediate implementation of this interim final rule without prior notice and comment because it would be impracticable to delay publication of this rule for notice and comment and because public comment is unnecessary. By operation of the Act, SLSDC must publish the catch-up adjustment by interim final rule by July 1, 2016. Additionally, the 2015 Act provides a clear formula for adjustment of the civil penalties, leaving the agency little room for discretion. For these reasons, SLSDC finds that notice and comment would be impracticable and is unnecessary in this situation.

SLSDC has considered the impact of this rulemaking action under Executive Order 12866, Executive Order 13563, and the Department of Transportation's regulatory policies and procedures. This rulemaking document was not reviewed under Executive Order 12866 or Executive Order 13563. This action is limited to the adoption of adjustments of civil penalties under statutes that the agency enforces, and has been determined to be not “significant” under the Department of Transportation's regulatory policies and procedures and the policies of the Office of Management and Budget. Because this rulemaking does not change the number of entities that are subject to civil penalties, the impacts are limited.

We also do not expect the increase in the civil penalty amount in 33 CFR 401.102 to be economically significant. Since January 1, 2010 to the present, the SLSDC assessed a total of approximately $27,000 in civil fines and penalties. Thus, increasing the current civil penalty amount would not result in an annual effect on the economy of $100 million or more.

We have also considered the impacts of this rule under the Regulatory Flexibility Act. I certify that this rule will not have a significant economic impact on a substantial number of small entities. The following provides the factual basis for this certification under 5 U.S.C. 605(b). The St. Lawrence Seaway Regulations and Rules primarily relate to the activities of commercial users of the Seaway, the vast majority of whom are foreign vessel operators. Therefore, any resulting costs will be borne mostly by foreign vessels.

Executive Order 13132 requires SLSDC 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.” Under Executive Order 13132, the agency may not issue a regulation with Federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, the agency consults with State and local governments, or the agency consults with State and local officials early in the process of developing the proposed regulation.

This rule 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.

The reason is that this rule will generally apply to commercial users of the Seaway, the vast majority of whom are foreign vessel operators. Therefore, any resulting costs will be borne mostly by foreign vessels. Thus, the requirements of Section 6 of the Executive Order do not apply.

The Unfunded Mandates Reform Act of 1995, Public Law 104-4, requires agencies to prepare a written assessment of the cost, benefits and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually. Because this rule will not have a $100 million effect, no Unfunded Mandates assessment will be prepared.

This rule does not have a retroactive or preemptive effect. Judicial review of a rule may be obtained pursuant to 5 U.S.C. 702. That section does not require that a petition for reconsideration be filed prior to seeking judicial review.

In accordance with the Paperwork Reduction Act of 1980, we state that there are no requirements for information collection associated with this rulemaking action.

Please note that anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78), or you may visit http://dms.dot.gov.

Accordingly, the Saint Lawrence Seaway Development Corporation is amending 33 CFR part 401 as follows:

I. Background A. What is a SIP?

Each state has a SIP containing the control measures and strategies used to attain and maintain the National Ambient Air Quality Standards (NAAQS). The SIP is extensive, containing elements covering a variety of subjects, such as air pollution control regulations, emission inventories, monitoring networks, attainment demonstrations, and enforcement mechanisms.

Each state must formally adopt the control measures and strategies in the SIP after the public has had an opportunity to comment on them. They are then submitted to EPA as SIP revisions on which EPA must formally act.

Once these control measures and strategies are approved by EPA, after notice and comment rulemaking, they are incorporated into the federally approved SIP and are identified in Title 40 of the Code of Federal Regulations part 52 “Approval and Promulgation of Implementation Plans” (40 CFR part 52). The actual state regulations approved by EPA are not reproduced in their entirety in 40 CFR part 52, but are “incorporated by reference,” which means that EPA has approved a given state regulation with a specific effective date. This format allows both EPA and the public to know which measures are contained in a given SIP and ensures that the state is enforcing the regulations. It also allows EPA and the public to take enforcement action, should a state not enforce its SIP-approved regulations.

The SIP is a living document which a state revises as necessary to address its unique air pollution problems. Therefore, EPA must, from time to time, take action on SIP revisions containing new and/or revised regulations as being part of the SIP. On May 22, 1997 (62 FR 27968), EPA revised the procedures for incorporating by reference federally approved SIPs, as a result of consultations between EPA and the Office of the Federal Register (OFR). The description of the revised SIP document, IBR procedures, and “Identification of Plan” format are discussed in further detail in the May 22, 1997, Federal Register document. On September 6, 2006 (71 FR 52467), EPA published a document in the Federal Register revising the format of the IBR material for Michigan.

In this action, EPA is publishing updated tables listing the regulatory and quasi-regulatory materials in the Michigan SIP as of May 1, 2016. This update includes SIP materials that have been submitted by Michigan and approved by EPA since this revised format was first applied to the Michigan SIP in 2006. EPA is removing the EPA Headquarters Library from paragraph (b)(3), as IBR materials are no longer available at this location. Finally, EPA is correcting typographical errors, including omission and other minor errors, and making formatting changes to the tables in subsection 52.2170 (c), (d), and (e).

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

EPA has determined that this rule falls under the “good cause” exemption in section 553(b)(3)(B) of the Administrative Procedures Act (APA) which, upon finding “good cause,” authorizes agencies to dispense with public participation and section 553(d)(3) which allows an agency to make a rule effective immediately (thereby avoiding the 30-day delayed effective date otherwise provided for in the APA). This rule simply codifies provisions which are already in effect as a matter of law in Federal and approved state programs. Under section 553 of the APA, an agency may find good cause where procedures are “impractical, unnecessary, or contrary to the public interest.” Public comment is “unnecessary” and “contrary to the public interest” since the codification only reflects existing law. Immediate notice in the CFR benefits the public by removing outdated citations and incorrect table entries.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

EPA is taking direct final action to approve the portions of a November 20, 2015, SIP submittal from Missouri concerning allocations of allowances used in the CSAPR 1 Federal trading programs for annual emissions of NOX and SO2. Large electricity generating units in Missouri are subject to CSAPR FIPs that require the units to participate in the Federal CSAPR NOX Annual Trading Program and the Federal CSAPR SO2 Group 1 Trading Program.2 Each of CSAPR's Federal trading programs includes default provisions governing the allocation among participating units of emission allowances used for compliance under that program. CSAPR also provides a process for the submission and approval of SIP revisions to replace EPA's default allocations with state-determined allocations.

The SIP revision approved in this action incorporates into Missouri's SIP state regulations establishing state-determined allowance allocations to replace EPA's default allocations to Missouri units of CSAPR NOX Annual allowances and CSAPR SO2

Group 1 allowances issued for the control periods in 2017 and later years. EPA is approving the SIP revision because it meets the requirements of the CAA and EPA's regulations for approval of an abbreviated SIP revision replacing EPA's default allocations of CSAPR emission allowances with state-determined allocations. Approval of this SIP revision does not alter any provisions of the CSAPR NOX Annual Trading Program or the CSAPR SO2 Group 1 Trading Program as applied to Missouri units other than the allowance allocation provisions, and the FIPs requiring the units to participate in those programs (as modified by this SIP revision) remain in place.

Large electricity generating units in Missouri are also subject to an additional CSAPR FIP requiring them to participate in the Federal CSAPR NOX Ozone Season Trading Program. While Missouri's SIP submittal also seeks to replace the default allocations of CSAPR NOX Ozone Season allowances to Missouri units, EPA is not acting on that portion of the SIP submittal at this time. Approval of this SIP revision concerning other CSAPR trading programs has no effect on the CSAPR NOX Ozone Season Trading Program as applied to Missouri units, and the FIP requiring the units to participate in that program remains in place.

Section II of this document summarizes relevant aspects of the CSAPR Federal trading programs and FIPs as well as the range of opportunities states have to submit SIP revisions to modify or replace the FIP requirements while continuing to rely on CSAPR's trading programs to address the states' obligations to mitigate interstate air pollution. Section III describes the specific conditions for approval of such SIP revisions. Section IV contains EPA's analysis of Missouri's SIP submittal, and Section V sets forth EPA's action on the submittal.

We are publishing this direct final rule without a prior proposed rule 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 approve the SIP revision if adverse comments are received on this direct final rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information about commenting on this rule, see the ADDRESSES section of this document. If EPA receives adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that this direct final rule will not take effect. We will address all public comments in any subsequent final rule based on the proposed rule.

EPA issued CSAPR in July 2011 to address the requirements of CAA section 110(a)(2)(D)(i)(I) concerning interstate transport of air pollution. As amended, CSAPR requires twenty-eight Eastern states to limit their statewide emissions of SO2 and/or NOX in order to mitigate transported air pollution unlawfully impacting other states' ability to attain or maintain three National Ambient Air Quality Standards (NAAQS): The 1997 ozone NAAQS, the 1997 annual fine particulate matter (PM2.5) NAAQS, and the 2006 24-hour PM2.5 NAAQS. The emissions limitations are defined in terms of maximum statewide “budgets” for emissions of annual SO2, annual NOX, and/or ozone-season NOX by each covered state's large electricity generating units. The budgets are implemented in two phases of generally increasing stringency, with the Phase 1 budgets applying to emissions in 2015 and 2016 and the Phase 2 budgets applying to emissions in 2017 and later years. As a mechanism for achieving compliance with the emissions limitations, CSAPR established four Federal emissions trading programs: A program for annual NOX emissions, a program for ozone-season NOX emissions, and two geographically separate programs for annual SO2 emissions. CSAPR also established up to three FIPs applicable to the large electricity generating units in each covered state. Each CSAPR FIP requires a state's units to participate in one of the four CSAPR trading programs.

CSAPR includes provisions under which states may submit and EPA will approve SIP revisions to modify or replace the CSAPR FIP requirements while allowing states to continue to meet their transport-related obligations using either CSAPR's Federal emissions trading programs or state emissions trading programs integrated with the Federal programs.3 Through such a SIP revision, a state may replace EPA's default provisions for allocating emission allowances among the state's units, employing any state-selected methodology to allocate or auction the allowances, subject to timing conditions and limits on overall allowance quantities. In the case of CSAPR's Federal trading program for ozone-season NOX emissions (or an integrated state trading program), a state may also expand trading program applicability to include certain smaller electricity generating units. However, no emissions budget increases or other substantive changes to the trading program provisions are allowed. If a state wants to replace CSAPR FIP requirements with SIP requirements under which the state's units participate in a state trading program that is integrated with and identical to the Federal trading program even as to the allocation and applicability provisions, the state may submit a SIP revision for that purpose as well. A state whose units are subject to multiple CSAPR FIPs and Federal trading programs may submit SIP revisions to modify or replace the requirements under either some or all of those FIPs.

States can submit two basic forms of CSAPR-related SIP revisions effective for emissions control periods in 2017 or later years.4 Specific conditions for approval of each form of SIP revision are set forth in the CSAPR regulations, as described in Section III below. Under the first alternative—an “abbreviated” SIP revision—a state may submit a SIP revision that upon approval replaces the default allowance allocation and/or applicability provisions of a CSAPR Federal trading program for the state.5 Approval of an abbreviated SIP revision leaves the corresponding CSAPR FIP and all other provisions of the relevant Federal trading program in place for the state's units.

Under the second alternative—a “full” SIP revision—a state may submit a SIP revision that upon approval replaces a CSAPR Federal trading program for the state with a state trading program integrated with the Federal trading program, so long as the state trading program is substantively identical to the Federal trading program or does not substantively differ from the Federal trading program except as discussed above with regard to the allowance allocation and/or applicability provisions.6 For purposes of a full SIP revision, a state may either adopt state rules with complete trading program language, incorporate the Federal trading program language into its state rules by reference (with appropriate conforming changes), or employ a combination of these approaches.

The CSAPR regulations identify several important consequences and limitations associated with approval of a full SIP revision. First, upon EPA's approval of a full SIP revision as correcting the deficiency in the state's SIP that was the basis for a particular CSAPR FIP, the obligation to participate in the corresponding CSAPR Federal trading program is automatically eliminated for units subject to the state's jurisdiction without the need for a separate EPA withdrawal action, so long as EPA's approval of the SIP is full and unconditional.7 Second, approval of a full SIP revision does not terminate the obligation to participate in the corresponding CSAPR Federal trading program for any units located in any Indian country within the borders of the state, and if and when a unit is located in Indian country within a state's borders, EPA may modify the SIP approval to exclude from the SIP, and include in the surviving CSAPR FIP instead, certain trading program provisions that apply jointly to units in the state and to units in Indian country within the state's borders.8 Finally, if at the time a full SIP revision is approved EPA has already started recording allocations of allowances for a given control period to a state's units, the Federal trading program provisions authorizing EPA to complete the process of allocating and recording allowances for that control period to those units will continue to apply, unless EPA's approval of the SIP revision provides otherwise.9

Certain CSAPR Phase 2 emissions budgets have been remanded to EPA for reconsideration.10 However, the CSAPR trading programs remain in effect and all CSAPR emissions budgets likewise remain in effect pending EPA final action to address the remands. None of the CSAPR emissions budgets applicable to Missouri units has been remanded.11

In 2015, EPA proposed to update CSAPR to address Eastern states' interstate air pollution mitigation obligations with regard to the 2008 ozone NAAQS. Among other things, the proposed rule would amend the Phase 2 emissions budget applicable to Missouri units under the CSAPR NOX Ozone Season Trading Program and would make technical corrections and nomenclature changes throughout the CSAPR regulations, including the CSAPR FIPs at 40 CFR part 52 and the CSAPR Federal trading program regulations for annual NOX, ozone-season NOX, and SO2 emissions at 40 CFR part 97.12

Each CSAPR-related abbreviated or full SIP revision must meet the following general submittal conditions:

• Timeliness and completeness of SIP submittal. If a state wants to replace the default allowance allocation or applicability provisions of a CSAPR Federal trading program, the complete SIP revision must be submitted to EPA by December 1 of the year before the deadlines described below for submitting allocation or auction amounts to EPA for the first control period for which the state wants to replace the default allocation and/or applicability provisions.13 (The SIP submission deadline is inoperative in the case of a SIP revision that seeks only to replace a CSAPR FIP and Federal trading program with a SIP and a substantively identical state trading program integrated with the Federal trading program.) The SIP submittal completeness criteria in section 2.1 of appendix V to 40 CFR part 51 also apply.

In addition to the general submittal conditions, a CSAPR-related abbreviated or full SIP seeking to address the allocation or auction of emission allowances must meet the following further conditions:

• Methodology covering all allowances potentially requiring allocation. For each Federal trading program addressed by a SIP revision, the SIP revision's allowance allocation or auction methodology must replace both the Federal program's default allocations to existing units 14 at 40 CFR 97.411(a), 97.511(a), 97.611(a), or 97.711(a), as applicable, and the Federal trading program's provisions for allocating allowances from the new unit set-aside (NUSA) for the state at 40 CFR 97.411(b)(1) and 97.412(a), 97.511(b)(1) and 97.512(a), 97.611(b)(1) and 97.612(a), or 97.711(b)(1) and 97.712(a), as applicable.15 In the case of a state with Indian country within its borders, while the SIP revision may neither alter nor assume the Federal program's provisions for administering the Indian country NUSA for the state, the SIP revision must include procedures addressing any the disposition of otherwise unallocated allowances from an Indian country NUSA that may be made available for allocation by the state after EPA has carried out the Indian country NUSA allocation procedures.16

• Assurance that total allocations will not exceed the state budget. For each Federal trading program addressed by a SIP revision, the total amount of allowances auctioned or allocated for each control period under the SIP revision (prior to the addition by EPA of any unallocated allowances from any Indian country NUSA for the state) may not exceed the state's emissions budget for the control period less the sum of the amount of any Indian country NUSA for the state for the control period and any allowances already allocated to the state's units for the control period and recorded by EPA.17 Under its SIP revision, a state is free to not allocate allowances to some or all potentially affected units, to allocate or auction allowances to entities other than potentially affected units, or to allocate or auction fewer than the maximum permissible quantity of allowances and retire the remainder.

• Timely submission of state-determined allocations to EPA. The SIP revision must require the state to submit to EPA the amounts of any allowances allocated or auctioned to each unit for each control period (other than allowances initially set aside in the state's allocation or auction process and later allocated or auctioned to such units from the set-aside amount) by the following deadlines.18 Note that the submission deadlines differ for amounts allocated or auctioned to units considered existing units for CSAPR purposes and amounts allocated or auctioned to other units.

• No changes to allocations already submitted to EPA or recorded. The SIP revision must not provide for any change to the amounts of allowances allocated or auctioned to any unit after those amounts are submitted to EPA or any change to any allowance allocation determined and recorded by EPA under the Federal trading program regulations.19

• No other substantive changes to Federal trading program provisions. The SIP revision may not substantively change any other trading program provisions, except in the case of a SIP revision that also expands program applicability as described below.20 Any new definitions adopted in the SIP revision (in addition to the Federal trading program's definitions) may apply only for purposes of the SIP revision's allocation or auction provisions.21

In addition to the general submittal conditions, a CSAPR-related abbreviated or full SIP revision seeking to expand applicability under the CSAPR NOX Ozone Season Trading Program (or an integrated state trading program) must meet the following further conditions:

• Only electricity generating units with nameplate capacity of at least 15 MWe. The SIP revision may expand applicability only to additional fossil fuel-fired boilers or combustion turbines serving generators producing electricity for sale, and only by lowering the generator nameplate capacity threshold used to determine whether a particular boiler or combustion turbine serving a particular generator is a potentially affected unit. The nameplate capacity threshold adopted in the SIP revision may not be less than 15 MWe.22

• No other substantive changes to Federal trading program provisions. The SIP revision may not substantively change any other trading program provisions, except in the case of a SIP revision that also addresses the allocation or auction of emission allowances as described above.23

In addition to the general submittal conditions and the other applicable conditions described above, a CSAPR-related full SIP revision must meet the following further conditions:

• Complete, substantively identical trading program provisions. The SIP revision must adopt complete state trading program regulations substantively identical to the Federal trading program regulations at 40 CFR 97.402 through 97.435, 97.502 through 97.535, 97.602 through 97.635, or 97.702 through 97.735, as applicable, except as described above in the case of a SIP revision that seeks to replace the default allowance allocation and/or applicability provisions.

• Only non-substantive substitutions for the term “State.” The SIP revision may substitute the name of the state for the term “State” as used in the Federal trading program regulations, but only to the extent that EPA determines that the substitutions do not substantively change the trading program regulations.24

• Exclusion of provisions addressing units in Indian country. The SIP revision may not include references to or impose requirements on any unit in any Indian country within the state's borders and must not include the Federal trading program provisions governing allocation of allowances from any Indian country NUSA for the state.25

In the CSAPR rulemaking, EPA determined that air pollution transported from Missouri unlawfully affected other states' ability to attain or maintain the 1997 annual PM2.5 NAAQS and the 2006 24-hour PM2.5 NAAQS.26 In a supplemental rulemaking, EPA determined that air pollution transported from Missouri also unlawfully affected other states' ability to attain and maintain the 1997 ozone NAAQS.27 Missouri units meeting the CSAPR applicability criteria are consequently subject to CSAPR FIPs that require participation in the CSAPR NOX Annual Trading Program, the CSAPR SO2 Group 1 Trading Program, and the CSAPR NOX Ozone Season Trading Program.28

On November 20, 2015, Missouri submitted to EPA an abbreviated SIP revision that, if all portions were approved, would replace the default allowance allocation provisions of all three CSAPR trading programs for the state's EGUs for the control periods in 2017 and later years with provisions establishing state-determined allocations for those control periods but that would leave the corresponding CSAPR FIPs and all other provisions of the trading programs in place. The SIP submittal generally consists of three duly adopted state rules, 10 CSR 10-6.372 (Cross-State Air Pollution Rule Annual NOX Trading Allowance Allocations), 10 CSR 10-6.374 (Cross-State Air Pollution Rule Ozone Season NOX Trading Allowance Allocations), and 10 CSR 10-6.376 (Cross-State Air Pollution Rule Annual SO2 Trading Allowances Allocations). The three state rules are substantively identical except that each addresses a different CSAPR Federal trading program and allocates a different total quantity of allowances. Each rule contains a table establishing specific amounts of allowances to be allocated for each control period in 2017 and later years to specified Missouri electricity generating units under the applicable CSAPR trading program. Each rule also establishes a NUSA for the applicable program for each control period and sets forth a procedure for allocating allowances from the NUSA to qualifying Missouri units.

The SIP revision was submitted to EPA by a letter from the Director of the Missouri Air Pollution Control Program. The letter and its enclosures describe steps taken by Missouri to provide public notice prior to adoption of the state rules.

In this rule, EPA is taking action on the portions of Missouri's SIP submittal relating to the CSAPR NOX Annual Trading Program and the CSAPR SO2 Group 1 Trading Program. EPA is not taking action at this time on the portion of the SIP submittal relating to the CSAPR NOX Ozone Season Trading Program. As noted in section II above, EPA has proposed to update CSAPR to address Eastern states' interstate air pollution mitigation obligations with regard to the 2008 ozone NAAQS. The proposal would reduce the ozone-season NOX emissions budgets for control periods in 2017 and later years for a number of states, including Missouri. Action on the portion of Missouri's SIP submittal addressing allocations of ozone-season NOX allowances would be premature while the proposed update is pending because there is a foreseeable potential conflict between the total amount of allowances that would be allocated to Missouri units under Missouri's state-determined allocation provisions, which are based on Missouri's current budget, and the total amount of allowances that could permissibly be allocated to the units under a final updated budget.

EPA has previously approved a separate Missouri SIP revision replacing the default allowance allocation provisions of the CSAPR NOX Annual Trading Program and the CSAPR NOX Ozone Season Trading Program for Missouri existing units for the control period in 2016.29

As described in section IV.A above, at this time EPA is taking action on the portions of Missouri's SIP submittal relating to the CSAPR NOX Annual Trading Program and the CSAPR SO2 Group 1 Trading Program but not the portion of the SIP submittal relating to the CSAPR NOX Ozone Season Trading Program. The analysis discussed in this section addresses only the portions of Missouri's SIP submittal on which EPA is taking action at this time. For simplicity, throughout this section EPA refers to the portions of the submittal on which EPA is taking action as “the submittal” or “the SIP revision” without repeating the qualification that at this time EPA is analyzing and acting on only portions of the SIP submittal.

Missouri's SIP revision seeks to establish state-determined allocations of CSAPR NOX Annual allowances and CSAPR SO2 Group 1 allowances for the control periods in 2017 and later years. Under 40 CFR 52.38(a)(4)(i)(B) and 52.39(e)(1)(ii), the deadline for submission of state-determined allocations for the 2017 and 2018 control periods is June 1, 2016, which under §§ 52.38(a)(4)(ii) and 52.39(e)(2) makes December 1, 2015, the deadline for submission to EPA of a complete SIP revision establishing state-determined allocations for those control periods. Missouri submitted its SIP revision to EPA by a letter dated and delivered electronically on November 20, 2015, and EPA has determined that the submittal complies with the applicable minimum completeness criteria in section 2.1 of appendix V to 40 CFR part 51. Because Missouri's SIP revision was timely submitted and meets the applicable completeness criteria, it meets the condition under 40 CFR 52.38(a)(4)(ii) and 52.39(e)(2) for timely submission of a complete SIP revision.

Paragraphs 10 CSR 10-6.372(3) and 10 CSR 10-6.376(3) of the Missouri rules provide that the allowance allocation methodology adopted by Missouri in the SIP revision replaces the provisions of 40 CFR 97.411(a) and 97.611(a), respectively, thereby addressing all allowances that under the default allocation provisions for the Federal trading programs would be allocated to units considered existing units for CSAPR purposes (prior to allocation of any allowances set aside during the initial allocation process). The same Missouri rule paragraphs also provide that the state's allocation methodology replaces the provisions of 40 CFR 97.411(b)(1) and 97.412(a) and the provisions of 40 CFR 97.611(b)(1) and 97.612(a), respectively, thereby addressing allocation of allowances in the NUSAs established for Missouri under the Federal trading programs. The CSAPR Federal trading program regulations do not establish any Indian country NUSAs for Missouri. The allocations provisions in the Missouri rules therefore enable Missouri's SIP revision to meet the condition under 40 CFR 52.38(a)(4)(i) and 52.39(e)(1) that the state's allocation or auction methodology must cover all allowances potentially requiring allocation by the state.

Paragraphs 10 CSR 10-6.372(3)(A)1. and 10 CSR 10-6.376(3)(A)1. of the Missouri rules provide for allowance allocations under each trading program to be made to specified units (including all Missouri units considered existing units for CSAPR purposes) in fixed amounts as set forth in tables referred to as “Table 1” in the state rules. The totals of the allowances allocated for each control period according to the two tables (45,818 CSAPR NOX Annual allowances and 160,959 CSAPR SO2 Group 1 allowances) are less than Missouri's state budgets for the control periods in 2017 and later years under the respective trading programs (48,743 CSAPR NOX Annual allowances and 165,941 CSAPR SO2 Group 1 allowances).30 Paragraphs 10 CSR 10-6.372(3)(B)3.B. and 10 CSR 10-6.376(3)(B)3.B. of the Missouri rules establish NUSAs for each trading program, allocating to each NUSA for each control period an amount of allowances equal to the state budget for the trading program minus the total amount of allowances allocated according to the table for that trading program. As noted above, the CSAPR Federal trading program regulations do not establish Indian country NUSAs for Missouri. The only allowances available for allocation to Missouri units are therefore allowances allocated under the Missouri rules, and the only such allowances, which necessarily sum to the state budgets, are the allowances allocated according to the tables and the allowances allocated from the NUSAs. EPA has not yet allocated or recorded CSAPR allowances for the control periods in 2017 or later years. The allocation methodology in Missouri's SIP revision therefore meets the condition under 40 CFR 52.38(a)(4)(i)(A) and 52.39(e)(1)(i) that, for each trading program, the total amount of allowances allocated under the SIP revision (before the addition of any otherwise unallocated allowances from an Indian country NUSA) may not exceed the state's budget for the control period less the amount of the Indian country NUSA for the state and any allowances already allocated and recorded by EPA.

The allocation tables in the Missouri rules establish the primary allowance allocations for all Missouri units that are considered existing units for CSAPR purposes. Paragraphs 10 CSR 10-6.372(3)(A)1.A. through D. and 10 CSR 10-6.376(3)(A)1.A. through D. of the Missouri rules provide for the state-determined allocations established according to the tables to be submitted to EPA by the following deadlines: Allocations for the control periods in 2017 and 2018, by June 1, 2016; allocations for the control periods in 2019 and 2020, by June 1, 2017; allocations for the control periods in 2021 and 2022, by June 1, 2018; and allocations for later control periods, by June 1 of the fourth year before the year of the control period. These submission deadlines match the deadlines under 40 CFR 52.38(a)(4)(i)(B) and 52.39(e)(1)(ii) described in Section III above for allocations to existing units. Paragraphs 10 CSR 10-6.372(3)(B)1. and 10-6.376(3)(B)1. of the Missouri rules provide for the state-determined allowance allocations to other units from the NUSAs for each control period to be submitted to EPA by July 1 of the year of the control period. These submission deadlines match the submission deadlines under 40 CFR 52.38(a)(4)(i)(C) and 52.39(e)(1)(iii) described in section III above for allocations to other units. Missouri's SIP revision therefore meets the conditions under 40 CFR 52.38(a)(4)(i)(B) and (C) and 52.39(e)(1)(ii) and (iii) requiring that the SIP revision provide for submission of state-determined allowance allocations to EPA by the deadlines specified in those provisions.

The Missouri rules include no provisions allowing alteration of allocations after the allocation amounts have been provided to EPA and no provisions allowing alteration of any allocations made and recorded by EPA under the Federal trading program regulations, thereby meeting the condition under 40 CFR 52.38(a)(4)(i)(D) and 52.39(e)(1)(iv).

Besides the provisions addressing allowance allocations discussed above, the Missouri rules contain certain definitions. Paragraphs 10 CSR 10-6.372(2)(A) and 10 CSR 10-6.376(2)(A) incorporate by reference the Federal trading program definitions in 40 CFR 97.402 and 97.403 and the definitions in 40 CFR 97.602 and 97.603, respectively. Paragraphs 10 CSR 6.372(2)(B) and 10 CSR 10-6.376(2)(B) define a single term which is not defined in the Federal trading program regulations (“notification”), and paragraphs 10 CSR 6.372(2)(C) and 10 CSR 10-6.376(2)(C) refer to another Missouri rule for definitions of otherwise undefined terms. These definition provisions do not make substantive changes to the Federal trading program provisions.31 EPA therefore determines that Missouri's SIP revision meets the condition under 40 CFR 52.38(a)(4) and 52.39(e) of making no substantive changes to the Federal trading program regulations beyond the provisions addressing allowance allocations.

EPA is taking direct final action to approve the portions of Missouri's November 20, 2015, SIP submittal concerning allocations to Missouri units of CSAPR NOX Annual allowances and CSAPR SO2 Group 1 allowances for the control periods in 2017 and later years. The approved revision adopts into the SIP the rules codified in Missouri's regulations at 10 CSR 10-6.372 (Cross-State Air Pollution Rule Annual NOX Trading Allowance Allocations) and 10 CSR 10-6.376 (Cross-State Air Pollution Rule Annual SO2 Trading Allowances Allocations). Following this approval, allocations of CSAPR NOX Annual allowances to Missouri units for the control periods in 2017 and later years will be made according to the provisions of Missouri's SIP instead of CSAPR's default allocation provisions at 40 CFR 97.411(a), 97.411(b)(1), and 97.412(a), and allocations of CSAPR SO2 Group 1 allowances to Missouri units for the control periods in 2017 and later years will be made according to the provisions of Missouri's SIP instead of CSAPR's default allocation provisions at 40 CFR 97.611(a), 97.611(b)(1), and 97.612(a). Approval of this SIP revision does not alter any provision of the CSAPR NOX Annual Trading Program or the CSAPR SO2 Group 1 Trading Program as applied to Missouri units other than the allowance allocation provisions, and the FIPs requiring the units to participate in those programs (as modified by this SIP revision) remain in place. EPA is approving the indicated portions of the SIP submittal because they meet the requirements of the CAA and EPA's regulations for approval of an abbreviated SIP revision replacing EPA's default allocations of CSAPR emission allowances with state-determined allocations, as discussed in section IV above.

Large electricity generating units in Missouri are also subject to an additional CSAPR FIP requiring them to participate in the Federal CSAPR NOX Ozone Season Trading Program. While Missouri's SIP submittal also seeks to replace the default allocations of CSAPR NOX Ozone Season allowances to Missouri units, EPA is not acting on that portion of the SIP submittal at this time. Approval of this SIP revision concerning other CSAPR trading programs has no effect on the CSAPR NOX Ozone Season Trading Program as applied to Missouri units, and the FIP requiring the units to participate in that program remains in place.

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

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

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

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

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

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

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

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

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

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because this rulemaking does not involve technical standards; and

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 29, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

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

Organization of This Preamble Table of Contents I. Regulated Entities and Supporting Documentation A. Regulated Entities B. Supporting Documentation II. Legal Authority III. Purpose and Summary of Final Rule A. Purpose and Summary of the Final Rule B. Summary of Costs and Benefits IV. Background A. Clean Water Act B. Effluent Limitations Guidelines and Standards Program 1. Best Practicable Control Technology Currently Available (BPT) 2. Best Conventional Pollutant Control Technology (BCT) 3. Best Available Technology Economically Achievable (BAT) 4. Best Available Demonstrated Control Technology (BADCT)/New Source Performance Standards (NSPS) 5. Pretreatment Standards for Existing Sources (PSES) and Pretreatment Standards for New Sources (PSNS) C. Subcategorization D. Oil and Gas Extraction Effluent Guidelines Rulemaking History 1. Subpart C: Onshore 2. Subpart E: Agricultural and Wildlife Use E. State Pretreatment Requirements That Apply to UOG Extraction Wastewater F. Related Federal Requirements in the Safe Drinking Water Act V. Industry Profile VI. Final Rule A. Scope/Applicability B. Option Selection 1. PSES 2. PSNS 3. Pollutants Selected for Regulation Pass-Through Analysis VII. Environmental Impacts A. Pollutants B. Impacts From the Discharge of Pollutants Found in UOG Extraction Wastewater C. Impact on Surface Water Designated Uses 1. Drinking Water Uses 2. Aquatic Life Support Uses 3. Livestock Watering Uses 4. Irrigation Uses 5. Industrial Uses VIII. Regulatory Implementation of the Standard A. Implementation Deadline B. Upset and Bypass Provisions C. Variances and Modifications IX. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks H. Executive Order 13211: Energy Effects I. National Technology Transfer and Advancement Act J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations K. Congressional Review Act (CRA) I. Regulated Entities and Supporting Documentation A. Regulated Entities

Entities potentially regulated by this final action include:

This section is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this final action. Other types of entities that do not meet the above criteria could also be regulated. To determine whether your facility would be regulated by this final action, you should carefully examine the applicability criteria listed in 40 CFR 435.30 and the definitions in 40 CFR 435.33(b) of the final rule and detailed further in Section VI, of this preamble. If you still have questions regarding the applicability of this final action to a particular entity, consult the person listed for technical information in the preceding FOR FURTHER INFORMATION CONTACT section.

The final rule is supported by a number of documents including the Technical Development Document for the Effluent Limitations Guidelines and Standards for the Oil and Gas Extraction Point Source Category (TDD), Document No. EPA-820-R-16-003 (DCN SGE01188). This document is available in the public record for this final rule and on EPA's Web site at https://www.epa.gov/eg/unconventional-oil-and-gas-extraction-effluent-guidelines.

EPA finalizes this regulation under the authorities of sections 101, 301, 304, 306, 307, 308, and 501 of the CWA, 33 U.S.C. 1251, 1311, 1314, 1316, 1317, 1318, and 1361.

Responsible development of America's oil and gas resources offers important economic, energy security, and environmental benefits. EPA has been working with states and other stakeholders to understand and address potential impacts of hydraulic fracturing, an important process involved in producing unconventional oil and gas, to help ensure public confidence that oil and gas production is conducted in a safe and responsible manner. This final rule fills a gap in existing federal wastewater regulations to ensure that the current industry practice of not sending wastewater discharges from this sector to POTWs continues into the future. This rule does not address the practice of underground injection of wastewater discharges from this sector, which is covered under the Safe Drinking Water Act (SDWA) (see Chapter A of the TDD).

Recent advances in the well completion process, combining hydraulic fracturing and horizontal drilling, have enhanced the technological and economic feasibility of oil and natural gas extraction from both existing and new resources. As a result, in 2013, United States (U.S.) crude oil and natural gas production reached their highest levels in more than 15 and 30 years, respectively (DCN SGE01192). Further, the Department of Energy (DOE) projects that natural gas production in the U.S. will increase by 45 percent by 2040, compared to 2013 production levels (DCN SGE01192). Similarly, the DOE projects that by 2020, crude oil production in the U.S. will increase by 43 percent compared to 2013 production levels (DCN SGE01192).

Direct discharges of oil and gas extraction wastewater pollutants from onshore oil and gas resources to waters of the U.S. have been regulated since 1979 under the existing Oil and Gas Effluent Limitations Guidelines and Standards (ELGs) (40 CFR part 435), the majority of which fall under subpart C, the Onshore Subcategory. Oil and gas extraction activities subject to subpart C include production, field exploration, drilling, well completion, and well treatment. The limitations for direct dischargers in the Onshore Subcategory represent Best Practicable Control Technology Currently Available (BPT). Based on the availability and economic practicability of underground injection technologies, the BPT-based limitations for direct dischargers require zero discharge of pollutants to waters of the U.S. However, there are currently no requirements in subpart C that apply to onshore oil and gas extraction facilities that are “indirect dischargers,” i.e., those that send their discharges to POTWs (municipal wastewater treatment facilities) which treat the water before discharging it to waters of the U.S.

This final rule applies to a subset of oil and gas extraction, i.e., onshore extraction from shale and/or tight geologic formations (referred to hereafter as unconventional oil and gas (UOG) resources). UOG extraction wastewater can be generated in large quantities and contains constituents that are potentially harmful to human health and the environment. Wastewater from UOG wells often contains high concentrations of total dissolved solids (TDS) (salt content). The wastewater can also contain various organic chemicals, inorganic chemicals, metals, and naturally-occurring radioactive materials (referred to as technologically enhanced naturally occurring radioactive material or TENORM).1 This potentially harmful wastewater creates a need for appropriate wastewater management infrastructure and management practices. Historically, operators of oil and gas extraction facilities primarily managed their wastewater via underground injection (where available). Where UOG wells were drilled in areas with limited underground injection wells, and/or there was a lack of wastewater management alternatives, it became more common for operators to look to POTWs and private wastewater treatment facilities to manage their wastewater.

POTWs collect wastewater from homes, commercial buildings, and industrial facilities and pipe it through sewer lines to the sewage treatment plant. In some cases, industrial dischargers can haul wastewater to the treatment plant by tanker truck. The industrial wastewater, commingled with domestic wastewater, is treated by the POTW and discharged to a receiving waterbody. Most POTWs, however, are designed primarily to treat municipally-generated, not industrial, wastewater. They typically provide at least secondary level treatment and, thus, are designed to remove suspended solids and organic material using biological treatment. As mentioned previously, wastewater from UOG extraction can contain high concentrations of TDS, radioactive elements, metals, chlorides, sulfates, and other dissolved inorganic constituents that POTWs are not designed to remove. Certain UOG extraction wastewater constituents are not typical of POTW influent wastewater and can be discharged, untreated, from the POTW to the receiving stream; can disrupt the operation of the POTW (e.g., by inhibiting biological treatment); can accumulate in biosolids (sewage sludge), limiting their beneficial use; and can facilitate the formation of harmful DBPs.

Where UOG extraction wastewaters have been discharged through POTWs and private wastewater treatment plants in the past, it has been documented that the receiving waters have elevated levels of TDS, specifically chlorides and bromide (DCN SGE01328). The concentration of TDS in UOG extraction wastewater can be high enough that if discharged untreated to a surface water it has the potential to adversely affect a number of the designated uses of the surface water, including use as a drinking water source, aquatic life support, livestock watering, irrigation, and industrial use. High concentrations of TDS can impact aquatic biota by causing increased receiving water salinity, osmotic imbalances, and toxic effects from individual ions present in the TDS. Increases in instream salinity have been shown to cause shifts in biotic communities, limit biodiversity, exclude less-tolerant species and cause acute or chronic effects at specific life stages (DCN SGE00946).

Discharges of bromide in industrial wastewater upstream of drinking water intakes—either directly or indirectly through POTWs—have led to the formation of carcinogenic disinfection by-products (brominated DBPs, in particular trihalomethanes) at drinking water utilities. Recent studies indicate that UOG extraction wastewaters contain various inorganic and organic DBP precursors that can react with disinfectants used by POTWs, and promote the formation of DBPs or alter speciation of DBPs, particularly brominated-DBPs, which are suspected to be among the more toxic DBPs (DCN SGE00535; DCN SGE00985). DBPs have been shown to have both adverse human health and ecological affects (DCN SGE00535; DCN SGE01126).

Section 307(b) of the CWA provides EPA authority to establish nationally applicable pretreatment standards for industrial categories that discharge indirectly (i.e., send wastewater to any POTW); this authority applies to key pollutants, such as TDS and its constituents, that are not susceptible to treatment by POTWs, or for pollutants that would interfere with the operation of POTWs. Generally, EPA designs nationally applicable pretreatment standards for categories of industry (categorical pretreatment standards) to ensure that wastewaters from direct and indirect industrial dischargers are subject to similar levels of treatment. EPA, in its discretion under section 304(g) of the Act, periodically evaluates indirect dischargers not subject to categorical pretreatment standards to identify potential candidates for new pretreatment standards. Until issuance of this final rule, EPA had not established nationally applicable pretreatment standards for the onshore oil and gas extraction point source subcategory.

This final rule establishes technology-based categorical pretreatment standards under the CWA for discharges of pollutants into POTWs from existing and new onshore UOG extraction facilities in subpart C of 40 CFR part 435 (80 FR 18557, April 7, 2015). The rule will fill a gap in federal CWA regulations and address concerns regarding the level of treatment provided by POTWs for UOG wastewater, potential interference with treatment processes, and potential impacts on water quality and aquatic life impacts that could result from inadequate treatment. Consistent with existing BPT-based requirements for direct dischargers in this subcategory, this final rule establishes pretreatment standards for existing and new sources (PSES and PSNS, respectively) that require zero discharge of wastewater pollutants associated with onshore UOG extraction facilities to POTWs.

This final rule does not include pretreatment standards for wastewater pollutants associated with conventional oil and gas extraction facilities or coalbed methane extraction facilities. EPA is reserving consideration of any such standards for a future rulemaking, if appropriate. See Section V1.A.

Because the data reviewed by EPA show that the UOG extraction industry is not currently managing wastewaters by sending them to POTWs, the final rule is not projected to affect current industry practice or to result in incremental compliance costs or monetized benefits. UOG extraction wastewater is typically managed through disposal via underground injection wells, reuse/recycle in subsequent fracturing jobs, or transfer to a centralized waste treatment (CWT) facility (see 80 FR 18570, April 7, 2015). EPA is promulgating this rule as a backstop measure because onshore unconventional oil and gas extraction facilities have discharged to POTWs in the past and because the potential remains that some facilities may consider discharging to POTWs in the future.

Congress passed the CWA to “restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. 1251(a). The Act establishes a comprehensive program for protecting our nation's waters. Among its core provisions, the CWA prohibits the discharge of pollutants from a point source to waters of the U.S., except as authorized under the Act. Under section 402 of the CWA, discharges may be authorized through a National Pollutant Discharge Elimination System (NPDES) permit. The CWA establishes a two-pronged approach for these permits, technology-based controls that establish the floor of performance for all dischargers, and water quality-based limits where the technology-based limits are insufficient for the discharge to meet applicable water quality standards. To serve as the basis for the technology-based controls, the CWA authorizes EPA to establish national technology-based effluent limitations guidelines and new source performance standards for discharges from different categories of point sources, such as industrial, commercial, and public sources, that discharge directly into waters of the U.S.

Direct dischargers (those discharging directly to waters of the U.S.) must comply with effluent limitations in NPDES permits. Technology-based effluent limitations (TBELs) in NPDES permits for direct dischargers are derived from effluent limitations guidelines (CWA sections 301 and 304) and new source performance standards (CWA section 306) promulgated by EPA. Alternatively, TBELs may be established based on best professional judgment (BPJ) where EPA has not promulgated an applicable effluent guideline or new source performance standard (CWA section 402(a)(1)(B) and 40 CFR 125.3). The effluent guidelines and new source performance standards established by regulation for categories of industrial dischargers are based on the degree of control that can be achieved using various levels of pollution control technology, as specified in the Act. Additional limitations based on water quality standards are also required to be included in the permit where necessary to meet water quality standards. CWA section 301(b)(1)(C).

EPA promulgates national effluent guidelines and new source performance standards for major industrial categories for three classes of pollutants: (1) Conventional pollutants (total suspended solids, oil and grease, biochemical oxygen demand (BOD5), fecal coliform, and pH), as outlined in CWA section 304(a)(4) and 40 CFR 401.16; (2) toxic pollutants (e.g., metals such as arsenic, mercury, selenium, and chromium; and organic pollutants such as benzene, benzo-a-pyrene, phenol, and naphthalene), as outlined in section 307(a) of the Act, 40 CFR 401.15 and 40 CFR part 423, appendix A; and (3) nonconventional pollutants, which are those pollutants that are not categorized as conventional or toxic (e.g., ammonia-N, phosphorus, and TDS).

Under section 307(b) of the CWA, there are general and specific prohibitions on the discharge to POTWs of pollutants in specified circumstances in order to prevent “pass through” or “interference.” Pass through occurs whenever the introduction of pollutants from a user will result in a discharge that causes or contributes to a violation of any requirement of the POTW permit. See 40 CFR 403.3(p). Interference means a discharge that, among other things, inhibits or disrupts the POTW or prevents biosolids use consistent with the POTW's chosen method of disposal. See 40 CFR 403.3(k). These general and specific prohibitions must be implemented through local limits established by POTWs in certain cases. See 40 CFR 403.5(c). POTWs with approved pretreatment programs must develop and enforce local limits to implement the general prohibitions on user discharges that pass through or interfere with the POTW and implement specific prohibitions in 40 CFR 403.5(b). In the case of POTWs that are not required to develop a pretreatment program, the POTWs must develop local limits where there is interference or pass through and the limits are necessary to ensure compliance with the POTW's NPDES permit or biosolids use.

The CWA also authorizes EPA to promulgate nationally applicable pretreatment standards that restrict pollutant discharges from facilities that discharge pollutants indirectly, by sending wastewater to POTWs, as outlined in sections 307(b) and (c) and 33 U.S.C. 1317(b) and (c). Specifically, the CWA authorizes EPA to establish pretreatment standards for those pollutants in wastewater from indirect dischargers that EPA determines are not susceptible to treatment by a POTW or which would interfere with POTW operations. CWA sections 307(b) and (c). Under section 301(b)(1)(A) and 301(b)(2)(A) and the legislative history of the 1977 CWA amendments, pretreatment standards are technology-based and analogous to TBELs for direct dischargers for the removal of toxic pollutants. As explained in the statute and legislative history, the combination of pretreatment and treatment by the POTW is intended to achieve the level of treatment that would be required if the industrial source were making a direct discharge. Conf. Rep. No. 95-830, at 87 (1977), reprinted in U.S. Congress. Senate. Committee on Public Works (1978), A Legislative History of the CWA of 1977, Serial No. 95-14 at 271 (1978). As such, in establishing pretreatment standards, EPA's consideration of pass through for national technology-based categorical pretreatment standards differs from that described above for general pretreatment standards. For categorical pretreatment standards, EPA's approach for pass through satisfies two competing objectives set by Congress: (1) That standards for indirect dischargers be equivalent to standards for direct dischargers; and (2) that the treatment capability and performance of the POTWs be recognized and taken into account in regulating the discharge of pollutants from indirect dischargers.

EPA develops ELGs that are technology-based regulations for specific categories of dischargers. EPA bases these regulations on the performance of control and treatment technologies. The legislative history of CWA section 304(b), which is the heart of the effluent guidelines program, describes the need to press toward higher levels of control through research and development of new processes, modifications, replacement of obsolete plants and processes, and other improvements in technology, taking into account the cost of controls. Congress has also stated that EPA need not consider water quality impacts on individual water bodies as the guidelines are developed. See Statement of Senator Muskie (October 4, 1972), reprinted in U.S. Senate Committee on Public Works, Legislative History of the Water Pollution Control Act Amendments of 1972, Serial No. 93-1, at 170.

There are four types of standards applicable to direct dischargers (facilities that discharge directly to waters of the U.S.), and two types of standards applicable to indirect dischargers (facilities that discharge to POTWs), described in detail later on. Subsections 1 through 4 describe standards for direct discharges and subsection 5 describes standards for indirect discharges.

Traditionally, EPA defines BPT effluent limitations based on the average of the best performances of facilities within the industry, grouped to reflect various ages, sizes, processes, or other common characteristics. BPT effluent limitations control conventional, toxic, and nonconventional pollutants. In specifying BPT, EPA looks at a number of factors. EPA first considers the cost of achieving effluent reductions in relation to the effluent reduction benefits. The Agency also considers the age of equipment and facilities, the processes employed, engineering aspects of the control technologies, any required process changes, non-water quality environmental impacts (including energy requirements), and such other factors as the Administrator deems appropriate. See CWA section 304(b)(1)(B). If, however, existing performance is uniformly inadequate, EPA can establish limitations based on higher levels of control than are currently in place in an industrial category, when based on an Agency determination that the technology is available in another category or subcategory and can be practically applied.

For discharges of conventional pollutants from existing industrial point sources, the CWA requires EPA to identify additional levels of effluent reduction that can be achieved with BCT. In addition to other factors specified in section 304(b)(4)(B), the CWA requires that EPA establish BCT limitations after consideration of a two-part “cost reasonableness” test. In a July 9, 1986 Federal Register Notice, EPA published and explained its methodology for the development of BCT limitations in (51 FR 24974). Section 304(a)(4) designates the following as conventional pollutants: BOD5, total suspended solids (TSS), fecal coliform, pH, and any additional pollutants defined by the Administrator as conventional. The Administrator designated oil and grease as an additional conventional pollutant on July 30, 1979 (44 FR 44501; 40 CFR part 401.16).

BAT represents the second level of stringency for controlling direct discharge of toxic and nonconventional pollutants. In general, BAT-based effluent guidelines and new source performance standards represent the best available economically achievable performance of facilities in the industrial subcategory or category. Following the statutory language, EPA considers the technological availability and the economic achievability in determining what level of control represents BAT. CWA section 301(b)(2)(A). Other statutory factors that EPA considers in assessing BAT are the cost of achieving BAT effluent reductions, the age of equipment and facilities involved, the process employed, potential process changes, and non-water quality environmental impacts, including energy requirements and such other factors as the Administrator deems appropriate. CWA section 304(b)(2)(B). The Agency retains considerable discretion in assigning the weight to be accorded these factors. Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1045 (D.C. Cir. 1978).

NSPS reflect effluent reductions that are achievable based on the best available demonstrated control technology (BADCT). Owners of new facilities have the opportunity to install the best and most efficient production processes and wastewater treatment technologies. As a result, NSPS should represent the most stringent controls attainable through the application of the BADCT for all pollutants (that is, conventional, nonconventional, and toxic pollutants). In establishing NSPS, EPA is directed to take into consideration the cost of achieving the effluent reduction and any non-water quality environmental impacts and energy requirements. CWA section 306(b)(1)(B).

As discussed previously, section 307(b) of the Act authorizes EPA to issue pretreatment standards for discharges of pollutants from existing sources to POTWs. Section 307(c) of the Act authorizes EPA to promulgate pretreatment standards for new sources (PSNS). Both standards are designed to prevent the discharge of pollutants that pass through, interfere with, or are otherwise incompatible with the operation of POTWs. Categorical pretreatment standards for existing sources are technology-based and are analogous to BPT and BAT effluent limitations guidelines, and thus the Agency typically considers the same factors in promulgating PSES for toxic and non-conventional pollutants as it considers in promulgating BAT. See Natural Resources Defense Council v. EPA, 790 F.2d 289, 292 (3rd Cir. 1986). Similarly, in establishing pretreatment standards for new sources, the Agency typically considers the same factors in promulgating PSNS as it considers in promulgating NSPS (BADCT).

In developing ELGs, EPA can divide an industry category into groupings called “subcategories” to provide a method for addressing variations among products, processes, treatment costs, and other factors that affect the determination of the “best available” technology. See Texas Oil & Gas Ass'n. v. US EPA, 161 F.3d 923, 939-40 (5th Cir.1998). Regulation of a category by subcategories provides that each subcategory has a uniform set of effluent limitations or pretreatment standards that take into account technological achievability, economic impacts, and non-water quality environmental impacts unique to that subcategory. In some cases, effluent limitations or pretreatment standards within a subcategory can be different based on consideration of these same factors, which are identified in CWA section 304(b)(2)(B). The CWA requires EPA, in developing effluent guidelines and pretreatment standards, to consider a number of different factors, which are also relevant for subcategorization. The CWA also authorizes EPA to take into account other factors that the Administrator deems appropriate. CWA section 304(b).

The Oil and Gas Extraction industry is subcategorized in 40 CFR part 435 as follows: (1) Subpart A: Offshore; (2) subpart C: Onshore; (3) subpart D: Coastal; (4) subpart E: Agricultural and Wildlife Water Use; and (5) subpart F: Stripper. EPA promulgated the first Oil and Gas Extraction ELGs (40 CFR part 435) in 1979 establishing BPT-based limitations for the Offshore, Onshore, Coastal, and Agricultural and Wildlife Use subcategories. EPA established BAT- and NSPS-based limits for certain subcategories in 1993 (Offshore), 1996 (Coastal), and 2001 (Synthetic-based drilling fluids). EPA also established pretreatment standards for one subcategory (Coastal) in 1996.

The previously established subpart C (Onshore) regulation covers wastewater discharges from field exploration, drilling, production, well treatment, and well completion activities in the onshore oil and gas industry. Although UOG resources occur in offshore and coastal regions, recent development of UOG resources in the U.S. has occurred primarily in onshore regions, to which the regulations in subpart C (Onshore) and subpart E (Agricultural and Wildlife Water Use) apply. Accordingly, this rule addresses the gap in onshore regulations, and only the regulations that apply to onshore oil and gas extraction are described in more detail here.

Subpart C applies to facilities engaged in the production, field exploration, drilling, well completion, and well treatment in the oil and gas extraction industry which are located landward of the inner boundary of the territorial seas—and which are not included in the definition of other subparts—including subpart D (Coastal). The regulations at 40 CFR 435.32 specify the following for BPT: There shall be no discharge of wastewater pollutants into navigable waters from any source associated with production, field exploration, drilling, well completion, or well treatment (i.e., produced water, drilling muds, drill cuttings, and produced sand).

Subpart E applies to onshore facilities located in the continental U.S. and west of the 98th meridian for which the produced water has a use in agriculture or wildlife propagation when discharged into navigable waters. Definitions in 40 CFR 435.51(c) explain that the term “use in agricultural or wildlife propagation” means that (1) the produced water is of good enough quality to be used for wildlife or livestock watering or other agricultural uses; and (2) the produced water is actually put to such use during periods of discharge. The regulations at 40 CFR 435.52 specify that the only allowable discharge is produced water, with an oil and grease concentration not exceeding 35 milligrams per liter (mg/L). The BPT regulations prohibit the discharge of waste pollutants into navigable waters from any source (other than produced water) associated with production, field exploration, drilling, well completion, or well treatment (i.e., drilling muds, drill cuttings, produced sands).

In addition to applicable federal requirements, some states regulate the management, storage, and disposal of UOG extraction wastewater, including regulations concerning pollutant discharges to POTWs from oil and gas extraction facilities. In addition to pretreatment requirements, some states have indirectly addressed the issue of pollutant discharges to POTWs by limiting the management and disposal options available for operators to use.

During initial development of Marcellus shale gas resources, some operators managed UOG wastewater by transfer to POTWs. EPA did not identify other areas in the U.S. where POTWs routinely accepted UOG extraction wastewaters. Chapter A of the TDD summarizes how Pennsylvania, Ohio, Michigan, and West Virginia responded to UOG extraction wastewater discharges to their POTWs. EPA did not identify any states that require zero discharge of pollutants from UOG operations to POTWs in the same manner as this final rule.

As required by SDWA section 1421, EPA has promulgated regulations to protect underground sources of drinking water through Underground Injection Control (UIC) programs that regulate the injection of fluids underground. These regulations are found at 40 CFR parts 144-148, and specifically prohibit any underground injection not authorized by UIC permit. 40 CFR 144.11. The regulations classify underground injection into six classes; wells that inject fluids brought to the surface in connection with oil and gas production are classified as Class II UIC wells. Thus, onshore oil and gas extraction facilities that seek to meet the zero discharge requirements of the existing ELGs or final pretreatment standard through underground injection of wastewater must obtain a Class II UIC permit for such disposal or take the wastewater to an appropriately permitted injection facility.

EPA gathered information on the industry via the North American Industry Classification System (NAICS), which is a standard created by the U.S. Census for use in classifying business establishments within the U.S. economy. The industry category affected by this final rule is the Oil and Gas Extraction industry (NAICS code 21111). The industry has two segments: Crude Petroleum and Gas Extraction (NAICS 211111) which is made up of facilities that have wells that produce petroleum or natural gas or produce crude petroleum from surface shale or tar sands; and Natural Gas Liquid Extraction (NAICS 211112), which is made up of facilities that recover liquid hydrocarbons from oil and gas field gases and sulfur from natural gas. According to data from the Statistics of U.S. Businesses (SUSB), in 2012 there were 6,646 firms in the overall Oil and Gas Extraction (OGE) industry. Of those firms, 98.5% were considered small business based on the Small Business Administration (SBA) criteria definition of a small firm in this industry as having 500 or fewer employees. In 2012, Oil and Gas Extraction sector firms employed, on average, 19 employees and had an estimated average $53 million in revenue per firm.

EPA reviewed financial performance of oil and gas firms from 2006 to 2014. Generally, over the analysis period, all segments of the oil and gas industry showed a similar profile of revenue growth; however, reviews of financial performance and condition metrics indicate a recent deterioration in financial performance and condition for OGE firms since mid-2014 due to the fall in crude oil and natural gas prices. The prediction of slow price recovery indicates that the financial condition of OGE firms in general may not recover in the short term, though the crude oil and natural gas prices are forecast to increase through 2040 (DCN SGE01192). While many factors will affect further UOG development, and forecasts inevitably involve considerable uncertainty, production is expected to continue to increase. EIA forecasts that by 2040, shale gas will account for 55 percent of U.S. natural gas production, with tight gas as the second leading source at 22 percent, and shale/tight oil 2 will account for 45 percent of total U.S. oil production (DCN SGE01192). See the industry profile (DCN SGE01277) for more information.

Consistent with the proposal, the scope of this final rule is specific to pretreatment standards for onshore oil and gas extraction facilities (subpart C). EPA did not propose to reopen the regulatory requirements applicable to any other subpart or the requirements for direct dischargers in subpart C. Rather, the scope of the final rule amends subpart C only to add requirements for indirect dischargers where there currently are none. Further, also consistent with the proposal, the final rule establishes requirements for wastewater discharges from UOG extraction facilities to POTWs. It does not establish requirements for wastewater discharges from conventional oil and gas extraction (COG) facilities. EPA reserves consideration of any such standards for a future rulemaking, if appropriate.

The final rule defines unconventional oil and gas resources as “crude oil and natural gas produced by a well drilled into a shale and/or tight formation (including, but not limited to, shale gas, shale oil, tight gas, and tight oil).” This definition is generally consistent with other readily available sources. For additional information, see Chapter B of the TDD.

As a point of clarification, although coalbed methane would fit this definition, the final pretreatment standards do not apply to pollutants in wastewater discharges associated with coalbed methane extraction to POTWs. EPA notes that the requirements in the existing effluent guidelines for direct dischargers also do not apply to coalbed methane extraction, as this industry did not exist at the time that the effluent guidelines were developed and was not considered by the Agency in establishing the effluent guidelines (DCN SGE00761). To reflect the fact that neither the final pretreatment standards nor the existing effluent guideline requirements apply to coalbed methane extraction, EPA expressly reserved a separate unregulated subcategory for coalbed methane in this final rule. For information on coalbed methane, see https://www.epa.gov/eg/coalbed-methane-extraction-industry.

EPA analyzed three regulatory options at proposal, the details of which were discussed fully in the document published on April 7, 2015 (80 FR 18557). In general, these three options ranged from requiring zero discharge of pollutants to POTWs, establishing non-zero pretreatment standards, or establishing no national pretreatment standards. Depending on the interests represented, public commenters supported virtually all of the regulatory options that EPA proposed—from the least stringent to the most stringent. Thus, in developing this final rule, EPA again considered the same three regulatory options.

After considering all of the relevant factors and technology options discussed in this preamble and in the TDD, as well as public comments, EPA decided to establish PSES based on current industry practice: Disposal in UIC wells, wastewater reuse/recycling to fracture 3 another well, or management by centralized waste treatment (CWT) facilities—none of which involve sending wastewater to POTWs. Thus, for PSES, the final rule establishes a zero discharge standard on all pollutants in UOG extraction wastewater.

Generally, EPA designs pretreatment standards to meet Congress' objective to ensure that wastewaters from direct and indirect industrial dischargers are subject to similar levels of pollutant removals prior to discharge to waters of the U.S. See Chemical Manufacturers Assn. v. EPA, 870 F.2d 177, 245 (5th Cir. 1989). This means that, typically, the requirements for indirect dischargers are analogous to those for direct dischargers. As explained in Section IV.C., the existing BPT-based requirement for direct dischargers in the Onshore Subcategory is zero discharge of wastewater pollutants into waters of the U.S. from any source associated with production, field exploration, drilling, well completion, or well treatment.

As explained in Section XII.E of the proposal (80 FR 18570, April 7, 2015), EPA evaluated the practices currently used to manage UOG extraction wastewaters. Based on the information reviewed as part of this final rulemaking, EPA concludes that current industry practice is to not discharge pollutants from onshore UOG extraction to POTWs.4 Rather, the vast majority of this wastewater is managed by disposal in underground injection wells and/or re-use in fracturing another well. A small, but in some geographic areas increasing, portion of the industry also transfers its wastewater to CWT facilities.5

The technology basis for the promulgated PSES is disposal in UIC wells, wastewater reuse/recycling to fracture another well, or management by CWT facilities. Because all existing UOG extraction facilities currently employ alternative wastewater management practices other than transfer to a POTW, the technology basis for meeting a zero discharge requirement is widely available. While EPA bases pretreatment standards and associated discharge limits on a technology basis, the agency does not require facilities to employ any specific technology; rather, facilities may comply with alternative technologies as long as they meet the prescribed limits.

Some commenters asserted that UIC wells may not be available in the future in all geographic locations, but provided no data to support their assertion. EPA does not have any data to demonstrate that UIC capacity nationwide will be expended and that this current management option will not be available in the future (See Chapter D of the TDD). Further, data suggest that, where UIC wells are currently available, this availability will likely continue in the future (see Chapter D of the TDD). Moreover, the technology basis for the final pretreatment standards is not limited to UIC disposal. EPA identified two other approaches that also meet the zero discharge requirement: Reuse/recycle of the wastewater for re-fracturing other wells, or transfer of the wastewater to a CWT facility. In recent years, industry has greatly expanded its knowledge about the ability to reuse/recycle UOG flowback and long-term produced water (the major contributors to UOG extraction wastewater by volume) in fracturing another well. Consequently, as the UOG industry continues to grow and new wells are being fractured, the need for UIC capacity for UOG extraction wastewater may decrease, even in geographic locations with an abundance of UIC capacity, due to the increased availability of reuse/recycle. In addition, EPA's record demonstrates that in areas of the country where UIC wells and/or opportunities for reuse in fracturing another well are limited, UOG extraction facilities transfer their wastewater to a CWT facility (see Chapter D of the TDD). Some commenters assert that the option to transfer UOG wastewater to CWT facilities may be limited in the future because EPA may revise ELGs for this industry. While EPA is conducting a study of CWT facilities that accept oil and gas wastewater to determine if revision to the CWT regulations may be appropriate, EPA is not evaluating any approaches that would directly restrict their availability to accept such wastewaters.

While the technology basis is best performing in that it achieves zero discharge of pollutants in UOG extraction wastewater to POTWs, the requirement reflects current industry practice and EPA therefore estimates that there will be no incremental pollutant reductions. Accordingly, because industry is already meeting this requirement, no facilities will incur incremental costs for compliance with the promulgated PSES and, therefore, the promulgated PSES is economically achievable. For the same reasons, the final PSES will result in no incremental non-water quality environmental impacts. Finally, because the final rule represents current industry practice, EPA requires that the PSES based on zero discharge of wastewater pollutants to POTWs be effective as of the effective date of this rule, 60 days after publication of this rule in the Federal Register.

EPA did not establish PSES based on Option 2, under which EPA would establish non-zero numerical pretreatment standards for discharges of wastewater pollutants from UOG extraction facilities. Such an option could be similar to the one adopted in Pennsylvania in 2010 that requires pretreatment of oil and gas wastewaters before discharge to a POTW to meet a maximum TDS concentration of 500 mg/L as well as specific numerical concentrations for other pollutants (see Chapter A of the TDD). Some commenters suggested this approach would provide an “escape-valve” for the future in the event that UIC disposal well capacity is exhausted. Others have suggested this would allow the water to be available for re-use (other than in fracturing another well) if technologies become available to pre-treat it to remove dissolved pollutants in a cost effective manner.

Although EPA identified technologies 6 that currently exist to treat dissolved pollutants in UOG extraction wastewater that could be used to set a non-zero numeric discharge limit, EPA did not select this option for the following reasons. First, the existing requirements for direct discharges of UOG extraction wastewater in the Onshore Subcategory require zero discharge of pollutants. As explained previously, EPA generally establishes requirements for direct and indirect discharges so that the wastewater receives comparable levels of pollutant removals prior to discharge to waters of the U.S.

Second, as detailed previously, UOG facilities in this subcategory are currently meeting the zero discharge requirement. Thus, any option that would allow for a discharge of UOG pollutants above the current zero discharge level would be less stringent than the current industry practice and thus would potentially increase the discharge of such pollutants to POTWs. EPA reasonably concluded that—as compared to a less stringent non-zero technology basis in Option 2—a standard based on available zero discharge options reflects the “best” available technology within the meaning of Section 304(b) of the Clean Water Act. Moreover, unlike Option 2, a zero discharge technology option is consistent with the CWA goal of eliminating the discharge of pollutants into navigable waters (CWA sections 101(a)(1); 301(b)(2)(A) and 306(a)(1)).

Third, EPA disagrees with the commenters' suggestion that an option allowing for the discharge to POTWs is necessary as an “escape valve” in case of limited future availability of UIC disposal options. As explained previously, UIC disposal capacity is currently widely available, and EPA does not have data to suggest that this capacity will be limited in the future. Moreover, approaches to achieve zero discharge are not limited to UIC wells, and EPA has no data to suggest that other zero discharge options, such as reuse/recycle of wastewater for re-fracturing or sending wastewater to CWT facilities, will be limited in the future. Without any such data, there is no basis for EPA to conclude that an “escape valve” allowing for discharge to POTWs is needed to address concerns about limited future availability of zero discharge technology options.

Fourth, although EPA identified technologies that currently exist to treat dissolved pollutants in UOG extraction wastewater, these TDS-removal technologies are also likely more costly, as demonstrated by information in the record on estimated costs of managing wastewater under various approaches, relative to the suite of technologies that form the zero discharge technology basis for the final rule. See DCN SGE01186, SGE00139, SGE00070, SGE00350, SGE00279, SGE01064, SGE00283, SGE00300, SGE00625, SGE00635, SGE00280, SGE00245, SGE00279, SGE00276, SGE00275.

With respect to the comments suggesting that EPA establish a non-zero numerical treatment standard in order to allow for (non-fracturing) reuse/recycle of the wastewater, data collected for this rulemaking demonstrate that the current technologies are capable of reducing TDS (and other dissolved pollutants) well below 500 mg/L (see DCN SGE01186). To the extent that these technologies or others are developed in the future to reduce pollutants in UOG extraction wastewater to enable them to be reused/recycled for purposes other than fracturing another well, these pre-treated wastewaters can be used directly for the other applications rather than going to a POTW.

In addition to the PSES option of zero discharge of wastewater pollutants, EPA also considered a “no rule” option, based on the discussion previously that no UOG facilities are currently transferring wastewater to POTWs, and given available alternative management options such as disposal in UIC wells and reuse/recycling.

EPA did not select a “no rule” option for several reasons. First, there is no national regulation that prevents or requires pretreatment of such discharges—and, as mentioned previously, EPA is not aware of any POTWs that are designed to treat dissolved pollutants common in UOG extraction wastewater. Thus, as explained previously, some pollutants of concern in UOG extraction wastewater will not be physically, chemically, or biologically reduced by the treatment processes typically used at POTWs, and these pollutants, if sent to POTWs, are expected to be discharged from the POTW into receiving waters. In addition, these pollutants can cause operational problems for the POTW's biological treatment processes and alter the POTW's ability to adequately remove BOD, TSS, and other pollutants for which it is regulated. For some UOG pollutants, such as radionuclides, the data indicate POTWs will remove some portion while discharging the remainder (DCN SGE01028; DCN SGE01185). In these cases, some portion of the radionuclides will partition to the POTW biosolids, which can cause the POTW to incur increased costs to change its selected method of biosolids management (DCN SGE00615). See Chapter D of the TDD. This means that, absent a pretreatment standard, constituents of such wastewater could be discharged to receiving waters or interfere with POTW operations when other available options such as reuse/recycle and proper disposal in a Class II UIC well better protect water quality and aquatic communities and help further the zero discharge goal of the CWA. CWA section 101(a)(1).

Second, as detailed in the TDD, few states have regulations or policies that prevent discharges of pollutants in UOG extraction wastewater to POTWs or that mandate pre-treatment prior to discharge to a POTW. In the absence of such regulations or policies, resource-constrained control authorities and/or POTWs that receive requests to accept UOG extraction wastewater would be in the position of having to evaluate whether to accept transfers of wastewater on a case-by-case basis. It is beneficial to the states as a practical matter to establish federal regulations that mandate this existing practice, in order to avoid the burden for each state to potentially repeat the effort of promulgating state-level regulations. EPA has discussed this rule with several states that have indicated that a federal pretreatment standard would reduce their administrative burden (DCN SGE00762; DCN SGE00743).

Third, EPA also considered the future burden that continued lack of pretreatment standards can impose on POTWs. The UOG extraction industry is predicted to continue to grow in the future, resulting in the installation, fracturing, and possible re-fracturing of hundreds of thousands of wells. Well operators will continue to generate UOG extraction wastewater and could request that local POTWs accept their wastewater for discharge. In the absence of federal pretreatment standards, POTWs can legally accept UOG extraction wastewater to the extent that such wastewater transfers are in compliance with state and local requirements and that resulting discharges comply with their permits. Evaluating each potential customer (industrial user) and developing a determination for each new UOG extraction wastewater source on a case-by-case basis could be burdensome for POTWs. In addition, where a POTW determines it can accept this wastewater, complying with applicable reporting requirements could be a significant burden to some POTWs. EPA concluded that a national-level determination that UOG extraction wastewater contains pollutant concentrations that could pass through POTWs, and establishment of categorical pretreatment standards, will avoid burdening individual pretreatment Control Authorities (e.g. POTWs) with evaluating each individual request. While EPA does not have the information to quantify the reductions in administrative burden that will likely result from the final rule, states generally support EPA's position that such reductions will be realized (DCN SGE00762; DCN SGE00743).

Fourth, history demonstrates that, absent controls preventing the transfer of or requiring pretreatment of such wastewater, POTWs could and did accept it. This occurred in Pennsylvania (see Chapter A and Chapter D of the TDD), where POTWs were used to manage UOG extraction wastewater until the state took action. This action included promulgating new regulations requiring pretreatment. Among the drivers behind these actions taken by Pennsylvania was that some waters were impaired by TDS. (DCN SGE00187). To avoid future scenarios where POTWs receive UOG extraction wastewater, it is reasonable to codify the zero discharge practice already adopted by the industry that EPA has found to be “best” in terms of pollutant removals, as well as both technologically available and economically achievable.

After considering all of the relevant factors and technology options discussed in this preamble and in the TDD, as well as public comments, as is the case with PSES, EPA decided to establish PSNS based on the technologies described in Option 1. For PSNS, the final rule establishes a zero discharge standard on all pollutants in UOG wastewater.

As previously noted, under section 307(c) of the CWA, new sources of pollutants into POTWs must comply with standards that reflect the greatest degree of effluent reduction achievable through application of the best available demonstrated control technologies. Congress envisioned that new treatment systems could meet tighter controls than existing sources because of the opportunity to incorporate the most efficient processes and treatment systems into the facility design. The technologies used to control pollutants at existing sources, disposal in UIC wells, wastewater reuse/recycling to fracture another well, and/or management at CWT facilities—are fully available to new sources for the same reasons specified earlier for existing sources. They achieve the greatest degree of effluent reduction available: zero discharge of pollutants in UOG extraction wastewater. Furthermore, EPA has not identified any technologies that are demonstrated to be available for new sources that are different from those identified for existing sources.

EPA determined that the final PSNS present no barrier to entry into the market for new sources. EPA has no data in the record indicating that new sources would manage their wastewater any differently than existing sources or that the management options that are available for existing sources would not be available for new sources. Indeed, EPA's record demonstrates that as new UOG facilities have come into existence, they are relying on the same current industry best practices as existing facilities, using zero discharge technology options to avoid sending wastewater to POTWs. See TDD Table D-1 and DCN SGE01179.A03. Accordingly, EPA found that there are no overall incremental impacts from the final standards on new sources, as is the case for existing sources, since the incremental costs faced by new sources generally will be the same as those faced by existing sources. EPA projects no incremental non-water quality environmental impacts. Therefore, EPA established PSNS that are the same as the final PSES for this final rule.

EPA rejected other options for PSNS for the same reasons that the Agency rejected other options for PSES. And, as with the final PSES, EPA determined that the final PSNS prevent pass through of pollutants from POTWs into receiving streams and also help control contamination of POTW sludge.

EPA identifies all pollutants in UOG extraction wastewater as pollutants of concern and similarly determined all pollutants pass through. As a result, all pollutants in UOG extraction wastewater are directly regulated by the final pretreatment standards.

CWA section 301(b) directs EPA to eliminate the discharge of all pollutants where it is technologically available and economically achievable to do so (after a consideration of the factors specified in section 304(b) of the Act). The first step in such an analysis is typically to identify Pollutants of Concern (POCs)—or the pollutants to be potentially regulated by the effluent guideline. For some industries and wastestreams, not every pollutant in the wastestream may be a pollutant of concern. For example, not every pollutant may be present in an amount or frequency that EPA can demonstrate, using available data, is treatable by the candidate technology. Where this is the case, EPA may choose to establish numerical limitations for only a subset of the pollutants present in the wastestream. For other industries and wastestreams, the candidate technology may be capable of controlling all pollutants present in the wastestream regardless of amount or frequency. Where this is the case, EPA considers all pollutants in the wastestream to be POCs. This is the case in this final rule because, as described previously, the technology bases for the rule: underground injection of UOG extraction wastewater, recycling and reuse of that wastewater, or management by CWT facilities; results in zero discharge of all pollutants from UOG facilities to POTWs. Therefore, under this rule, all pollutants in UOG extraction wastewater are POCs. Chapter C of the TDD provides a summary of available characterization data for UOG extraction wastewaters.

In addition, before establishing PSES/PSNS for a pollutant, EPA examines whether the pollutant “passes through” a POTW to waters of the U.S. or interferes with the POTW operation or sludge disposal practices. In determining whether a pollutant passes through POTWs for these purposes,7 where EPA establishes non-zero pretreatment standards, EPA generally compares the percentage of a pollutant removed by well-operated POTWs performing secondary treatment to the percentage removed by the BAT/NSPS technology basis. A pollutant is determined to pass through POTWs when the median percentage removed nationwide by well-operated POTWs is less than the median percentage removed by the BAT/NSPS technology basis. Pretreatment standards are established for those pollutants regulated under BAT/NSPS that pass through POTWs. In this way, EPA is able to ensure that the standards for indirect dischargers are equivalent to direct dischargers and that the treatment capability and performance of POTWs is recognized and taken into account in regulating the pollutants from indirect dischargers.

For those wastestreams regulated with a zero discharge limitation or standard, EPA typically sets the percentage removed by the technology basis at 100 percent for all pollutants. Because a POTW would not be able to achieve 100 percent removal of wastewater pollutants, the percent removal at a POTW would be less than that of the candidate zero-discharge technology. For this final rule, using this approach, EPA determined that all pollutants pass through and that it is appropriate to set PSES/PSNS for all pollutants to prevent pass through.

UOG production generates significant volumes of wastewater that need to be managed. As described in Section XII.C.2 of the proposed rule (80 FR 18569, April 7, 2015), unconventional wells can produce flowback volumes ranging between 210,000 and 2,100,000 gallons during the initial flowback process.8 During the production phase, wells typically produce smaller volumes of water (median flow rates range from 200-800 gallons per day) and continue producing wastewater throughout the life of the well (see TDD Chapter C.2).

In general, evidence of environmental impacts to surface waters from discharges of UOG extraction wastewater is sparsely documented—as direct discharges from onshore oil and gas extraction have been prohibited under the existing regulations since 1979; and based on current industry best practice, there have been few indirect discharges of such wastewater to POTWs. Some of the environmental impacts documented to date, such as increased DBP formation in downstream drinking water treatment plants, resulted from wastewater pollutants that passed untreated through POTWs in Pennsylvania (see Chapter D of the TDD).

As described in Section XII.D of the proposed rule (80 FR 18569, April 7, 2015), high concentrations of TDS are common in UOG extraction wastewater. Inorganic constituents leaching from geologic formations, such as sodium, potassium, bromide, calcium, fluoride, nitrate, phosphate, chloride, sulfate, and magnesium, represent most of the TDS in UOG extraction wastewater. Produced water can also include barium, radium, and strontium. Based on available data, TDS cations (positively charged ions) in UOG extraction wastewater are generally dominated by sodium and calcium, and the anions (negatively charged ions) are dominated by chloride (DCN SGE00284; See also Chapter C of the TDD). TDS concentrations vary among the UOG formations and can exceed 350,000 mg/L. For comparison, sea water contains approximately 35,000 mg/L TDS.

As explained in Chapter D of the TDD, POTWs are typically designed to treat organic waste, total suspended solids, and constituents responsible for biochemical oxygen demand, not to treat TDS. When transfers of UOG extraction wastewater to POTWs were occurring in Pennsylvania, these POTWs, lacking adequate TDS removal processes, diluted UOG extraction wastewaters with other sewage flows and discharged TDS-laden effluent into local streams and rivers. POTWs not sufficiently treating TDS in UOG extraction wastewater were a suspected source of elevated TDS levels in the Monongahela River in 2009 (DCN SGE00525). Also see Chapter D of the TDD for additional examples.

In addition to UOG wastewater pollutants passing through POTWs, other industrial discharges of inadequately treated UOG extraction wastewater have also been associated with in-stream impacts. One study of discharges from a CWT facility in western Pennsylvania that treats UOG extraction wastewater examined the water quality and isotopic compositions of discharged effluents, surface waters, and stream sediments (DCN SGE00629).9 The facility's treatment process includes settling, precipitation, and fine screening, but does not remove TDS (DCN SGE00525). The study found that the discharge of the effluent from the CWT facility increased downstream concentrations of chloride and bromide above background levels. The chloride concentrations 1.7 kilometers downstream of the treatment facility were two to ten times higher than chloride concentrations found in similar reference streams in western Pennsylvania. Radium 226 levels in stream sediments at the point of discharge were approximately 200 times greater than upstream and background sediments.

UOG extraction wastewater TDS concentrations are typically high enough, that if discharged untreated to surface water, affect adversely a number of designated uses of the surface water, including drinking water source, aquatic life support, livestock watering, irrigation, and industrial use.

Available data indicate that the concentration of TDS in UOG extraction wastewaters can often significantly exceed recommended drinking water concentrations. Because TDS concentrations in drinking water source waters are typically well below the recommended levels for drinking, few drinking water treatment facilities have technologies to remove TDS. Two published standards for TDS in drinking water include the U.S. Public Health Service recommendation and EPA's secondary maximum contaminant level recommendation that TDS in drinking water should not exceed 500 mg/L. High concentrations of TDS in drinking water primarily degrade its taste rather than pose a human health risk. Taste surveys found that water with less than 300 mg/L TDS is considered excellent, and water with TDS above 1,100 mg/L is unacceptable (DCN SGE00939). The World Health Organization dropped its health-based recommendations for TDS in 1993, instead retaining 1,000 mg/L as a secondary standard for taste (DCN SGE00947).

Bromide in UOG wastewater discharges can adversely affect surface waters used as drinking water supplies. Recent studies of industrial discharges that contain bromide upstream of drinking water utilities' intakes demonstrate that with bromides present in drinking water source waters at increased levels, carcinogenic disinfection by-products (brominated DBPs, in particular trihalomethanes (THMs)) can form at the drinking water utility (DCN SGE01329). DBPs have been shown to have both adverse human health and ecological affects. Studies also demonstrate that bromide in UOG wastewaters treated at POTWs can lead to the formation of DBPs within the POTW. EPA reviewed a study of a POTW accepting UOG wastewater that unintentionally created DBPs due to insufficient removal of bromide and other UOG wastewater constituents (DCN SGE00535; DCN SGE00587). The study found that UOG extraction wastewaters contain various inorganic and organic DBP precursors that can react with disinfectants used by POTWs to promote the formation of DBPs, or alter speciation of DBPs, particularly brominated-DBPs, which are suspected to be among the more toxic DBPs (DCN SGE00535; DCN SGE00985). See Chapter D of the TDD for further discussion of DBP formation associated with UOG extraction wastewaters.

TDS and its accompanying salinity play a primary role in the distribution and abundance of aquatic animal and plant communities. High levels of TDS can impact aquatic biota through increases in salinity, loss of osmotic balance in tissues, and toxicity of individual ions. Increases in salinity have been shown to cause shifts in biotic communities, limit biodiversity, exclude less-tolerant species and cause acute or chronic effects at specific life stages (DCN SGE00946). A detailed study of plant communities associated with irrigation drains reported substantial changes in marsh communities, in part because of an increase in dissolved solids (DCN SGE00941). Observations over time indicate a shift in plant community coinciding with increases in dissolved solids from estimated historic levels of 270 to 1170 mg/L, as species that are less salt tolerant such as coontail (Ceratophyllus demersum) and cattail (Typha sp.) were nearly eliminated. A related study found that lakes with higher salinity exhibit lower aquatic biodiversity, with species distribution also affected by ion composition (DCN SGE00940).

Aquatic toxicity is dependent on the ionic composition of the mixture. Salts, specifically sodium and chloride, are the majority (i.e., much greater than 50 percent) of TDS in UOG produced water (DCN SGE00284). Typical chloride concentrations in UOG wastewater have been measured at concentrations up to 130,000 mg/L (see TDD Table C11). Macroinvertebrates, such as fresh water shrimp and aquatic insects that are a primary prey of many fish species, have open circulatory systems that are especially sensitive to pollutants like chloride. Based on laboratory toxicity data from EPA's 1988 chloride criteria document and more recent non-EPA studies, chloride acute effect concentrations for invertebrates ranged from 953 mg/L to 13,691 mg/L. Chloride chronic effect concentrations for invertebrates ranged from 489 mg/L to 556 mg/L. In addition to the laboratory data, EPA also reviewed data from a 2009 Pennsylvania Department of Environmental Protection violation report documenting a fish kill attributed to a spill of diluted produced water in Hopewell Township, PA. The concentration of TDS at the location of the fish kill was as high as 7,000 mg/L. While not related to UOG extraction wastewater, negative impacts of high TDS, including fish kills, were documented during 2009 at Dunkard Creek located in Monongalia County, Pennsylvania. (DCN SGE00001 and DCN SGE00001.A01)

POTW discharges to surface waters containing high concentrations of TDS can impact downstream uses for livestock watering. High TDS concentrations in water sources for livestock watering can adversely affect animal health by disrupting cellular osmotic and metabolic processes (DCN SGE01053). Domestic livestock, such as cattle, sheep, goats, horses, and pigs have varying degrees of sensitivity to TDS in drinking water.

If UOG extraction wastewater discharges to POTWs increase TDS concentrations in receiving streams, downstream irrigation uses of that surface water can be negatively affected. Elevated TDS levels can limit the usefulness of water for irrigation. Excessive salts affect crop yield in the short term, and the soil structure in the long term. Primary direct impacts of high salinity water on plant crops include physiological drought, increased osmotic potential of soil, specific ion toxicity, leaf burn, and nutrient uptake interferences (DCN SGE00938). In general, for various classes of crops the salinity tolerance decreases in the following order: forage crops, field crops, vegetables, fruits.

In addition to short-term impacts to crop plants, irrigating with high TDS water can result in gradual accumulation of salts or sodium in soil layers and eventual decrease in soil productivity. The susceptibility of soils to degradation is dependent on the soil type and structure. Sandy soils are less likely than finely textured soils to accumulate salts or sodium. Soils with a high water table or poor drainage are more susceptible to salt or sodium accumulation. The most common method of estimating the suitability of a soil for crop production is through calculation of its sodicity as estimated by the soil's sodium absorption ratio (SAR). The impact of irrigation water salinity on crop productivity is a function of both the SAR value and the electrical conductivity. The actual field-observed impacts are very site-specific depending on the soil and crop system (DCN SGE00938).

POTW discharges to surface waters are often upstream of industrial facilities that withdraw surface waters for various cooling and process uses. High concentration of TDS can adversely affect industrial applications requiring the use of water in cooling tower operations, boiler feed water, food processing, and electronics manufacturing. Concentrations of TDS above 500 mg/L result in excessive scaling in water pipes, water heaters, boilers and household appliances (DCN SGE00174). Depending on the industry, TDS in intake water can interfere with chemical processes within the plant. Some industries requiring ultrapure water, such as semi-conductor manufacturing facilities, are particularly sensitive to high TDS levels due to the treatment cost for the removal of TDS.

The requirements in this rule apply to discharges from UOG facilities through local pretreatment programs under CWA section 307. Pretreatment standards promulgated under section 307(b) and (c) are self-implementing. See CWA section 307(d). The duty to comply with such standards is independent of any state or a municipal control authority permit or control mechanism containing the standards and associated reporting requirements.

Because the requirements of the final rule are based on current practice, EPA determined that the PSES/PSNS standards apply on the effective date of the final rule, August 29, 2016.

For discussion of upset and bypass provisions, see the proposed rule (80 FR 18569, April 7, 2015).

For discussion of variances and modifications, see the proposed rule (80 FR 18569, April 7, 2015).

Additional information about these statutes and Executive Orders can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

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

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act. This final rule codifies current industry practice and does not impose any additional reporting requirements.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act. In making this determination, the impact of concern is any significant adverse economic impact on small entities. An agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, has no net burden or otherwise has a positive economic effect on the small entities subject to the rule.

For purposes of assessing the impacts of the final rule on small entities, small entity is defined as: A small business that is primarily engaged in Crude Petroleum and Natural Gas Extraction and Natural Gas Liquid Extraction by NAICS code 211111 and 211112 with fewer than 500 employees (based on Small Business Administration size standards). The small entities that are subject to the requirements of this final rule are small businesses that engage in UOG extraction as defined in Section V, of this preamble. No small businesses will experience a significant economic impact because the final rulemaking codifies current industry practice and does not impose any new requirement that is not already being met by the industry. I have therefore concluded that this action will have no net regulatory burden for all directly regulated small entities.

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no incremental enforceable duty on any state, local or tribal governments or the private sector.

This action does not have federalism implications. It does not alter the basic state-federal scheme established in the CWA under which EPA authorizes states to carry out the NPDES permit program. It will not have 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. Although this order does not apply to this action, as explained in Section VI, EPA coordinated closely with states through a workgroup, as well as outreach efforts to pretreatment coordinators and pretreatment authorities.

This action does not have tribal implications as specified in Executive Order 13175. It will not have substantial direct effects on tribal governments, 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. The final rule contains no Federal mandates for tribal governments and does not impose any enforceable duties on tribal governments. Thus, Executive Order 13175 does not apply to this action.

Although Executive Order 13175 does not apply to this action, the EPA coordinated with tribal officials early in the process of developing this rule to enable them to have meaningful and timely input into its development. EPA coordinated with federally recognized tribal governments in May and June of 2014, sharing information about the UOG pretreatment standards proposed rulemaking with the National Tribal Caucus and the National Tribal Water Council. EPA continued the outreach effort by collecting data about UOG operations on tribal reservations, UOG operators that are affiliated with Indian tribes, and POTWs owned or operated by tribes that can accept industrial wastewaters (see DCN SGE00785). Based on this information, there are no tribes operating UOG wells that discharge wastewater to POTWs nor are there any tribes that own or operate POTWs that accept industrial wastewater from UOG facilities; therefore, this final rule will not impose any costs on tribes.

This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because the EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. This action codifies current industry practice; therefore there is no change in environmental health or safety risks.

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

This final rulemaking does not involve technical standards.

The final rule will neither increase nor decrease environmental protection (as described in Section VI) as it codifies current industry practice; therefore, EPA determined that the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations. EPA requested comment on this E.O. in the proposal (80 FR 18579; April 7, 2015) and received no comments.

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

Therefore, 40 CFR part 435 is amended as follows:

On November 2, 2015, the President signed into law the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Sec. 701 of Pub. L. 114-74) (“the Act”). The Act requires Federal agencies to adjust the level of civil monetary penalties with an initial “catch-up” adjustment through rulemaking and then make subsequent annual adjustments for inflation. The purpose of these adjustments is to maintain the deterrent effect of civil penalties and to further the policy goals of the underlying statutes.

This rule adjusts the following civil monetary penalties:

The Office of Management and Budget (OMB) issued guidance on calculating the catch-up adjustment. See February 24, 2016, Memorandum for the Heads of Executive Departments and Agencies, from Shaun Donovan, Director, Office of Management and Budget, re: Implementation of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015. Under this guidance, the Department has identified applicable civil monetary penalties and calculated the catch-up adjustment. A civil monetary penalty is any assessment with a dollar amount that is levied for a violation of a Federal civil statute or regulation, and is assessed or enforceable through a civil action in Federal court or an administrative proceeding. A civil monetary penalty does not include a penalty levied for violation of a criminal statute, or fees for services, licenses, permits, or other regulatory review. The calculated catch-up adjustment is based on the percent change between the Consumer Price Index for all Urban Consumers (CPI0-U) for the month of October in the year of the previous adjustment (or in the year of establishment, if no adjustment has been made) and the October 2015 CPI-U.

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

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

The Regulatory Flexibility Act (RFA) requires an agency to prepare a regulatory flexibility analysis for rules unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The RFA applies only to rules for which an agency is required to first publish a proposed rule. See 5 U.S.C. 603(a) and 604(a). The Federal Civil Penalties Adjustment Act of 2015 requires agencies to adjust civil penalties with an initial catch-up adjustment through an interim final rule. An interim final rule does not include first publishing a proposed rule. Thus, the RFA does not apply to this final rule.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:

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

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

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

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

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

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

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

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

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

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

This rule does not contain information collection requirements, and a submission to the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.) is not required. We may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number.

This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 (NEPA) is not required because the rule is covered by a categorical exclusion. This rule is excluded from the requirement to prepare a detailed statement because it is a regulation of an administrative nature. (For further information see 43 CFR 46.210(i).) We have also determined that the rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that.

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

We are required by Executive Orders 12866 (section 1(b)(12)), 12988 (section 3(b)(1)(B)), and 13563 (section 1(a)), and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

(a) Be logically organized;

(b) Use the active voice to address readers directly;

(c) Use common, everyday words and clear language rather than jargon;

(d) Be divided into short sections and sentences; and

(e) Use lists and tables wherever possible.

If you feel that we have not met these requirements, send us comments by one of the methods listed in the ADDRESSES section. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that you find unclear, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

The Act requires agencies to publish interim final rules by July 1, 2016, with an effective date for the adjusted penalties no later than August 1, 2016. To comply with the Act, we are issuing these regulations as an interim final rule and are requesting comments post-promulgation. Section 553(b) of the Administrative Procedure Act (APA) provides that, when an agency for good cause finds that “notice and public procedure . . . are impracticable, unnecessary, or contrary to the public interest,” the agency may issue a rule without providing notice and an opportunity for prior public comment. The Office of the Secretary finds that there is good cause to promulgate this rule without first providing for public comment. It would not be possible to meet the deadlines imposed by the Act if we were to first publish a proposed rule, allow the public sufficient time to submit comments, analyze the comments, and publish a final rule. Also, the Office of the Secretary is promulgating this final rule to implement the statutory directive in the Act, which requires agencies to publish an interim final rule and to update the civil penalty amounts by applying a specified formula. The Office of the Secretary has no discretion to vary the amount of the adjustment to reflect any views or suggestions provided by commenters. Accordingly, it would serve no purpose to provide an opportunity for pre-promulgation public comment on this rule. Thus, pre-promulgation notice and public comment is impracticable and unnecessary.

For the reasons given in the preamble, the Office of the Secretary amends 43 CFR part 10 as follows.

I. Background II. Calculation of Adjustment III. Procedural Requirements A. Regulatory Planning and Review (E.O. 12866 and 13563) B. Regulatory Flexibility Act C. Small Business Regulatory Enforcement Fairness Act D. Unfunded Mandates Reform Act E. Takings (E.O. 12630) F. Federalism (E.O. 13132) G. Civil Justice Reform (E.O. 12988) H. Consultation With Indian Tribes (E.O. 13175 and Departmental Policy) I. Paperwork Reduction Act J. National Environmental Policy Act K. Effects on the Energy Supply (E.O. 13211) L. Clarity of This Regulation M. Administrative Procedure Act I. Background

On November 2, 2015, the President signed the Act into law (Sec. 701 of Pub. L. 114-74). It requires all Federal agencies to review their existing regulations and adjust the level of civil monetary penalties found in those regulations for inflation. The Act contemplates two adjustments—an initial “catch-up” adjustment through rulemaking from the date the penalty in question was established to present day, and annual adjustments for inflation thereafter. The purpose of these adjustments is to maintain the deterrent effect of civil penalties found in existing regulations, in order to further the policy goals of the underlying statutes. The BLM has reviewed its existing regulations and determined that only the civil monetary penalties found at 43 CFR 3163.2 are subject to the Act's requirements.

Once penalties subject to the Act have been identified, the Act specifies the formula and format to be used to adjust those amounts. (Section 701(b)) The adjustments contemplated by the Act are based on the percent change between the Consumer Price Index for all Urban Consumers (CPI-U) for the month of October in 1987, the year the penalties were established by regulation, and the October 2015 CPI-U, so the catch-up adjustment multiplier is 2.06278 for all penalties. The Act caps adjustments at 150 percent, and Section 701(b)(1)(D) of the Act specifically requires that adjustments be promulgated as an interim final rule. The Act does not provide BLM with discretion with respect to either of these provisions.

The adjustments made by this interim final rule constitute the initial “catch-up” adjustment contemplated by the Act and subsequent guidance from OMB, and include the following changes to the penalties provided by existing regulations:

OMB issued guidance on calculating the catch-up adjustment in accordance with the Act. See February 24, 2016, Memorandum for the Heads of Executive Departments and Agencies, from Shaun Donovan, Director, Office of Management and Budget, re: Implementation of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015. Under this guidance, the Department of the Interior has identified applicable civil monetary penalties and calculated the catch-up adjustment. A civil monetary penalty is any assessment with a dollar amount that is levied for a violation of a Federal civil statute or regulation, and is assessed or enforceable through a civil action in Federal court or an administrative proceeding. A civil monetary penalty does not include a penalty levied for violation of a criminal statute, or fees for services, licenses, permits, or other regulatory review. The calculated catch-up adjustment is based on the percent change between the Consumer Price Index for all Urban Consumers (CPI-U) for the month of October in the year of the previous adjustment (or in the year of establishment, if no adjustment has been made) and the October 2015 CPI-U.

Executive Order 12866 provides that the Office of Information and Regulatory Affairs in the Office of Management and Budget will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant. Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science, and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.

The Regulatory Flexibility Act (RFA) requires an agency to prepare a regulatory flexibility analysis for rules unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The RFA applies only to rules for which an agency is required to first publish a proposed rule. See 5 U.S.C. 603(a) and 604(a). The Act requires agencies to adjust civil penalties with an initial catch-up adjustment through an interim final rule. Since an interim final rule does not include first publishing a proposed rule, the RFA does not apply to this final rule.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:

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

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

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

This rule will potentially affect individuals and companies who hold leases on Federal or Indian lands. The BLM believes that the vast majority of potentially affected entities will be small businesses as defined by the Small Business Administration. However, the BLM does not believe the rule will pose a significant economic impact on the industry, including any small entities, for two reasons. First, any lessee can avoid being assessed civil penalties by operating in compliance with BLM rules and regulations. Second, payments for penalties adjusted as a result of this rule will be negligible compared with the $23 billion worth of crude oil and natural gas produced from Federal and Indian leases last year.

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

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

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

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

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

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

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

This rule does not contain information collection requirements, and a submission to OMB under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.) is not required. We may not conduct or sponsor, and you are not required to respond to, a collection of information unless it displays a currently valid OMB control number.

A detailed statement under the National Environmental Policy Act of 1969 (NEPA) is not required because the rule is covered by a categorical exclusion. This rule is excluded from the requirement to prepare a detailed statement because it is a regulation of an administrative nature. (For further information see 43 CFR 46.210(i).) We have also determined that the rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA.

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

We are required by Executive Orders 12866 (section 1(b)(12)), 12988 (section 3(b)(1)(B)), and 13563 (section 1(a)), and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

(a) Be logically organized;

(b) Use the active voice to address readers directly;

(c) Use common, everyday words and clear language rather than jargon;

(d) Be divided into short sections and sentences; and

(e) Use lists and tables wherever possible.

If you feel that we have not met these requirements, send us comments by one of the methods listed in the ADDRESSES section. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that you find unclear, which sections or sentences are too long, the sections where you feel lists or tables would be useful.

The Act requires agencies to publish interim final rules by July 1, 2016, with an effective date for the adjusted penalties no later than August 1, 2016. To comply with the Act, we are issuing these regulations as an interim final rule and are requesting comments post-promulgation. Section 553(b) of the Administrative Procedure Act (APA) provides that, when an agency for good cause finds that “notice and public procedure . . . are impracticable, unnecessary, or contrary to the public interest,” the agency may issue a rule without providing notice and an opportunity for prior public comment.

The BLM is promulgating this rule as an interim final rule because the Act expressly directs us to do so by July 1, 2016. The BLM also finds that there is good cause to promulgate this rule without notice and public procedure for two reasons. First, it would not be possible to meet the deadlines imposed by the Act if the BLM were first to publish a proposed rule, allow the public sufficient time to submit comments, and analyze those comments, before publishing a final rule. Also, since the Act does not give the BLM any discretion to vary the amount of the adjustment for any given penalty to reflect any views or suggestions provided by commenters, it would serve no purpose to provide an opportunity for pre-promulgation public comment on this rule. Thus, pre-promulgation notice and public comment is impracticable and unnecessary.

For the reasons given in the preamble, the BLM amends Chapter II of Title 43 of the Code of Federal Regulations as follows:

Background

The regulations at 50 CFR part 11 provide uniform rules and procedures for the assessment of civil penalties resulting from violations of certain laws and regulations enforced by the Service.

On November 2, 2015, the President signed into law the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (sec. 701 of Pub. L. 114-74) (Inflation Adjustment Act). The Inflation Adjustment Act requires Federal agencies to adjust the level of civil monetary penalties with an initial “catch up” adjustment through rulemaking and then make subsequent annual adjustments for inflation. The purpose of these adjustments is to maintain the deterrent effect of civil penalties and to further the policy goals of the underlying statutes.

Under section 4 of the Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. 2461 note, as amended by the Inflation Adjustment Act, Public Law 114-74, 129 Stat. 584 (2015), each Federal agency is required to issue regulations adjusting for inflation the statutory civil monetary penalties (civil penalties) that can be imposed under the laws administered by that agency. The Inflation Adjustment Act provides for an initial “catch up adjustment” to take effect no later than August 1, 2016, followed by subsequent adjustments to be made no later than January 15 every year thereafter. This interim rule adjusts, in accordance with the Inflation Adjustment Act, the maximum amount of each statutory penalty that may be imposed for violations of Service-administered statutes and their implementing regulations. Section 11.33 identifies the applicable Service-administered statutes and sets out the inflation-adjusted civil penalty amounts that may be imposed pursuant to each statutory provision. The adjusted penalty amounts are applicable to civil penalties assessed after the Inflation Adjustment Act takes effect.

The Inflation Adjustment Act provides for determining the initial catch up adjustment by first determining the cost-of-living adjustment (COLA), which is defined in section 5 of the Inflation Adjustment Act as the percentage (if any) for each civil monetary penalty by which the Consumer Price Index (CPI) for the month of October 2015 exceeds the CPI for the month of October of the calendar year during which the amount of such civil monetary penalty was established or adjusted under a provision of law other than this Act. The Inflation Adjustment Act further provides that the initial catch up adjustment shall not exceed 150 percent of the amount of that civil monetary penalty on the date of the enactment of the Inflation Adjustment Act. The CPI is defined in the Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. 2461 note, as the CPI for all-urban consumers published by the Department of Labor.

Once the COLA is determined, the current civil penalty is adjusted accordingly. For instance, the current maximum civil penalty amount under the Bald and Golden Eagle Protection Act (BGEPA) is $5,000, see 16 U.S.C. 668(b), which was last adjusted in 1972. The CPI in October 1972 was 42.3 as compared to the CPI in October 2015, which was 237.838. This represents an increase of over 150 percent, but since the Inflation Adjustment Act caps the initial catch up adjustment at 150 percent, the COLA adjustment for civil penalties under BGEPA will be 150 percent. Thus, the current civil penalty of $5,000 under BGEPA will increase to $12,500 once this regulation becomes effective, as described below.

OMB issued a memorandum, M-16-06, entitled “Implementation of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015,” which provides in Table A the civil penalty catch-up adjustment multiplier by calendar year. The Appendix to OMB's memorandum provides step-by-step instructions for determining the catch up adjustment, and the Service determined the adjustments accordingly.

You may submit your comments and materials concerning this interim rule by one of the methods listed in ADDRESSES. We request that you send comments only by the methods described in ADDRESSES. We will not consider hand-delivered comments that we do not receive, or mailed comments that are not postmarked, by the date specified in DATES. If you submit information via http://www.regulations.gov, your entire submission, including any personal identifying information, will be posted on the Web site. If your submission is made via a hard copy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hard copy submissions on http://www.regulations.gov.

Comments and materials we receive, as well as supporting documentation we used in preparing this interim rule, will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Office of Law Enforcement (see FOR FURTHER INFORMATION CONTACT).

We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

(a) Be logically organized;

(b) Use the active voice to address readers directly;

(c) Use clear language rather than jargon;

(d) Be divided into short sections and sentences; and

(e) Use lists and tables wherever possible.

If you feel that we have not met these requirements, send us comments by one of the methods listed in ADDRESSES. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

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

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

The Regulatory Flexibility Act (RFA) requires an agency to prepare a regulatory flexibility analysis for rules unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The RFA applies only to rules for which an agency is required to first publish a proposed rule. See 5 U.S.C. 603(a) and 604(a). The Inflation Adjustment Act requires agencies to adjust civil penalties with an initial catch up adjustment through an interim rule. An interim rule does not include first publishing a proposed rule. Thus, the RFA does not apply to this rule.

This interim rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:

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

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

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

Under the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), this interim rule will not “significantly or uniquely” affect small governments.

a. This interim rule will not significantly or uniquely affect small governments. A Small Government Agency Plan is not required.

We are the lead agency for enforcing numerous conservation acts and executive orders, for regulating wildlife trade through the declaration process, for issuing permits to conduct activities affecting wildlife and their habitats, and for carrying out U.S. obligations under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). No small government assistance or impact is expected as a result of this interim rule.

b. This interim rule will not produce a Federal requirement that may result in the combined expenditure by State, local, or tribal governments of $100 million or greater in any year, so it is not a “significant regulatory action” under the Unfunded Mandates Reform Act.

This interim rule will not result in any combined expenditure by State, local, or tribal governments.

Under Executive Order 12630, this interim rule does not have significant takings implications. Under Executive Order 12630, this interim rule does not affect any constitutionally protected property rights. This interim rule has no private property takings implications as defined in Executive Order 12630. This executive order specifically exempts civil procedures for violations of law.

Under Executive Order 13132, this interim rule does not have significant Federalism effects. A federalism summary impact statement is not required. This interim rule will not have a substantial direct effect on the States, on the relationship between the Federal government and the States, or on the distribution of power and responsibilities among the various levels of government.

Under Executive Order 12988, the Department of the Interior has determined that this interim rule does not overly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order. The purpose of this interim rule is to adjust for inflation the statutory civil monetary penalties that may be assessed for violations of Service-administered statutes and their implementing regulations. Specifically, this interim rule has been reviewed to eliminate errors and ensure clarity, has been written to minimize lawsuits, provides a clear legal standard for affected actions, and specifies in clear language the effect on existing Federal law or regulation.

This interim rule does not contain any information collection requirements that require approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act. We may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

This interim rule has been analyzed under the criteria of the National Environmental Policy Act (NEPA) and part 516, chapter 8 of the Departmental Manual (DM) (516 DM 8). This interim rule does not amount to a major Federal action significantly affecting the quality of the human environment. Neither an environmental impact statement nor an environmental assessment is required. This interim rule is categorically excluded from further NEPA requirements, under 43 CFR 46.210. This categorical exclusion addresses policies, directives, regulations, and guidelines that are of an administrative, financial, legal, technical, or procedural nature and whose environmental effects are too broad, speculative, or conjectural to lend themselves to meaningful analysis under NEPA.

The Department of the Interior strives to strengthen its government-to-government relationship with Indian tribes through a commitment to consultation with Indian tribes and recognition of their right to self-governance and tribal sovereignty. Under the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175, and 512 DM 2, we have evaluated possible effects on federally recognized Indian tribes and have determined that there are no adverse effects. For violations of certain laws and regulations enforced by the Service, individual tribal members are subject to the same civil procedures as other individuals.

On May 18, 2001, the President issued Executive Order 13211 on regulations that significantly affect energy supply, distribution, or use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This interim rule applies only to U.S. Government civil procedures, it is not a significant regulatory action under Executive Order 12866, and it is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required.

The Inflation Adjustment Act requires Federal agencies to publish interim rules by July 1, 2016, with an effective date for the adjusted penalties no later than August 1, 2016. To comply with the Inflation Adjustment Act, we are issuing these regulations as an interim rule and are requesting comments after publication. Section 553(b) of the Administrative Procedure Act (APA) provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary, or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for prior public comment. The Service finds that there is good cause to issue this interim rule without first providing for public comment. It would not be possible to meet the deadlines imposed by the Inflation Adjustment Act if we were to first publish a proposed rule, allow the public sufficient time to submit comments, analyze the comments, and publish a final rule. The Service is issuing this interim rule to implement the statutory directive in the Inflation Adjustment Act, which requires agencies to publish an interim rule and to update the civil penalty amounts by applying a specified formula. The Service has no discretion to vary the amount of the adjustment to reflect any views or suggestions provided by commenters. Accordingly, it would serve no purpose to provide an opportunity for public comment prior to publication of this rule. Thus, pre-publication notice and public comment is impracticable and unnecessary. This rule will also update the address for the Office of Hearings and Appeals in sections 11.15, 11.25, and 11.26. Since these updates are merely ministerial, we find that pre-publication notice and public comment with respect to those revisions is unnecessary.

For the reasons described above, we amend part 11, subchapter B of chapter I, title 50 of the Code of Federal Regulations as set forth below.

The New England Fishery Management Council manages the small-mesh multispecies fishery primarily through a series of exemptions from the Northeast Multispecies Fishery Management Plan (FMP). The small-mesh multispecies fishery is composed of five stocks of three species of hakes (northern and southern silver hake, northern and southern red hake, and offshore hake). It is managed separately from the other stocks of groundfish such as cod, haddock, and flounders, primarily because the fishery uses small mesh and modified nets that do not generally result in the catch of these other stocks. Amendment 19 to the Northeast Multispecies FMP (April 4, 2013; 78 FR 20260) established a process for setting the small-mesh multispecies catch specifications, as well as set the specifications for the 2012-2014 fishing years. On May 28, 2015, NMFS published specifications for the 2015-2017 fishing years, based on stock assessment updates using data through the spring 2014 survey (80 FR 30379). The Northeast Fisheries Science Center completed a stock assessment update in 2015, using data through the 2015 spring survey. The 2015 update indicates that the northern red hake stock is increasing in biomass, while the southern stock is decreasing.

The purpose of this action is to modify the northern and southern red hake specifications for the 2016 and 2017 fishing years. The Council recommended these changes in response to its review of the 2015 assessment update. The 2015 stock assessment update showed an increase in the northern red hake stock and a decrease in the southern red hake stock; however, the reasons for the decline in the southern stock area are unclear. In response to the updated stock assessment, the Council recommends modifications to the annual catch limits and total allowable landings limits.

This rule increases the northern red hake and decreases the southern red hake 2016 and 2017 annual catch limits and total allowable landings limits (Table 1), consistent with the stock assessment update and the Council's recommendation. The increase to the northern stock specifications will reduce unnecessary discards by delaying a reduction in the possession limits. This action will benefit the fishery without increasing the risk of overfishing. The decrease in the southern stock specifications is necessary to reduce the risk of overfishing, even though recent landings are approximately 20 percent below the revised level of total allowable landings (Table 2).

On April 7, 2016, NMFS published proposed specifications for public notice and comment. NMFS did not receive any comments in response to the proposed rule.

The Administrator, Greater Atlantic Region, NMFS, determined that this final rule is necessary for the conservation and management of the small-mesh multispecies fishery and that it is consistent with the Magnuson-Stevens Act and other applicable laws.

This action is exempt from review under E.O. 12866 because this action contains no implementing regulations.

The Assistant Administrator finds good cause under the authority of 5 U.S.C. 553(d)(3) to waive the 30-day delay of the effective date. Because the fishing year began on May 1, 2016, delaying the effectiveness of this action, particularly the increase in the northern red hake catch limits, would not be in the best interest of the fishery resource or vessels fishing for small-mesh multispecies. The intent of this action is to allow the fishery to benefit from the increase in the northern red hake biomass by increasing the overall catch limits for the fishery. This action will also help to reduce red hake discards by ensuring that the possession limits are not reduced sooner than necessary. The accountability measures for the fishery require that the possession limits be reduced once certain harvest triggers are met. If the 30-day delay in the effective date stands, there is a risk that early-season fishing effort on the northern red hake stock could trigger a reduction in the possession limits before the increase in overall catch limits contained in this final rule take effect. In 2012 and 2013, northern red hake catch rates exceeded the Annual Catch Limits (ACL) and Acceptable Biological Catch (ABC) and the possession limit was reduced to the incidental level earlier than anticipated. Such a situation could cause economic hardship for fishermen by restricting them to a lower possession limit until the higher catch limits contained in this rule take effect and the higher possession limits are re-instated. Therefore, having the increased catch limits take effect upon publication will optimize the benefits to the industry by extending the season and will benefit the resource by helping to prevent excess discards and overages to the ACL and ABC.

In addition, making the measures in this final rule effective upon publication will assist in reducing the risk of overfishing the southern red hake stock, even though the fishery is not expected to exceed the reduced catch limits.

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 is not required and none was prepared.

There are no new reporting or recordkeeping requirements contained in any of the final measures included in this action.

This rule is accessible via the Internet at the Office of the Federal Register Web site at https://www.federalregister.gov. Background information and documents are available at the Pacific Fishery Management Council's Web site at http://www.pcouncil.org/. Copies of the final environmental impact statement (FEIS) for the Groundfish Specifications and Management Measures for 2015-2016 and Biennial Periods Thereafter are available from Chuck Tracy, Acting Executive Director, Pacific Fishery Management Council (Council), 7700 NE Ambassador Place, Portland, OR 97220, phone: 503-820-2280.

The best available fisheries information indicates that catch of sablefish in the commercial non-trawl fisheries north of 36° N. lat. in 2016 will be higher than anticipated. The Council considered updated projections and the status of ongoing groundfish fisheries at its March 9-14, 2016, and April 9-14, 2016, meetings. The Council considered 2015 fishery harvest estimates and fishery models, updated with the best estimate reports from the Pacific Fishery Information Network through February 28, 2016.

At its March meeting, the Council considered updated projections, indicating that sablefish landings through the end of the year would exceed the sablefish allocation in the limited entry fixed gear daily trip limit (DTL) fishery north of 36° N. lat. Projected landings in the limited entry fixed gear DTL fishery north of 36° N. lat. vary based on assumptions on the price per pound. If no action is taken—and this higher than anticipated catch continues in the limited entry fixed gear DTL fishery—then projected landings range from 90 percent of the allocation (low price assumption) to over 100 percent of the allocation (high price assumption) through the end of the year. In recent years, the Council has taken a precautionary approach to setting trip limits at the start of the year. Setting trip limits to target approximately 90 percent attainment of the allocation allows for flexibility to increase trip limits later in the year if harvest remains at or lower than anticipated levels, and also reduces the risk of early closure if catches are higher than anticipated. The Council considered a modest decrease to the weekly limit in the limited entry fixed gear DTL fishery north of 36° N. lat. With a slightly smaller weekly limit, harvest estimates through the end of the year were reduced to between 81 and 93 percent of the allocation (under low and high price per pound assumptions, respectively).

The Council recommended and NMFS is implementing a reduction in the weekly limit for sablefish in the limited entry fixed gear fishery north of 36° N. lat. from “1,275 lb per week, not to exceed 3,375 lb per two months” to “1,125 lb per week, not to exceed 3,375 lb per two months.”

At its April meeting, the Council considered 2015 fishery performance, status of ongoing fisheries in 2016, updated projections, and requests from industry regarding the open access DTL fishery north of 36° N. lat. Harvest of sablefish in the open access DTL fishery north of 36° N. lat. exceeded its allocation in 2015. Industry raised concerns that participation levels seen in 2015 may further increase in 2016 due to a predicted poor salmon fishing season and lack of a Dungeness crab fishery off California. If no action is taken and this higher than anticipated catch continues in the open access DTL fishery, landings through the end of the year are projected to be 70 percent of the allocation. The Council considered these updated projections, and concerns and recommendations from industry representatives. Based on public testimony, there is anecdotal evidence of a sharp increase in participation in this fishery, particularly in southern Oregon and northern California ports. Industry representatives recommended a precautionary decrease in trip limits beginning July 1 to slow landings and maintain year-round fishing opportunities. The Council considered a precautionary reduction to open access DTL trip limits to maintain harvest opportunities throughout the year even under much higher participation levels.

The Council recommended and NMFS is implementing a reduction in the trip limit for sablefish in the open access fishery north of 36° N. lat. from “300 lb per day, or one landing per week of up to 1,000 lb, not to exceed 2,000 lb per two months” to “300 lb per day, or one landing per week of up to 850 lb, not to exceed 1,700 lb per two months,” beginning July 1, 2016.

Decreases to trip limits in the limited entry fixed gear and open access DTL fisheries north of 36° N. lat. are intended to allow year-round fishing opportunities and reduce the risk of closure as occurred in 2015 (when the limited entry fixed gear and open access DTL fisheries north of 36° N. lat. were both closed on November 1, reducing the season length by two months).

This final rule makes routine inseason adjustments to groundfish fishery management measures, based on the best available information, consistent with the PCGFMP and its implementing regulations.

This action is taken under the authority of 50 CFR 660.60(c) and is exempt from review under Executive Order 12866.

The aggregate data upon which these actions are based are available for public inspection at the Office of the Administrator, West Coast Region, NMFS, during business hours.

NMFS finds good cause to waive prior public notice and comment on the revisions to groundfish management measures under 5 U.S.C. 553(b) because notice and comment would be impracticable and contrary to the public interest. Also, for the same reasons, NMFS finds good cause to waive the 30-day delay in effectiveness pursuant to 5 U.S.C. 553(d)(3), so that this final rule may become effective June 28, 2016.

The Council recommended that these changes be implemented as quickly as possible to reduce harvest of sablefish in the limited entry fixed gear and open access DTL fisheries north of 36° N. lat. based in information available at its March and April meetings. There was not sufficient time after those meetings to draft this document and undergo proposed and final rulemaking before this action needs to be in effect. For the action to be implemented in this final rule, affording the time necessary for prior notice and opportunity for public comment would prevent NMFS from managing fisheries using the best available science to approach, without exceeding, the sablefish ACLs in accordance with the PCGFMP and applicable law. These adjustments to management measures must be implemented in a timely manner to prevent the 2016 sablefish north 36° N. lat. allocations from being exceeded and help ensure year-round fishing opportunities, consistent with objectives of the PCGFMP. No aspect of this action is controversial, and changes of this nature were anticipated in the groundfish biennial harvest specifications and management measures established for 2015-2016.

Accordingly, for the reasons stated above, NMFS finds good cause to waive prior notice and comment and to waive the delay in effectiveness.

For the reasons set out in the preamble, 50 CFR part 660 is amended as follows: