Federal Register Vol. 81, No.14,

The Drug-Free Workplace Act of 1988, Public Law 100-690, Title V, Subtitle D; 41 U.S.C. 701, et seq., was enacted as a part of omnibus drug legislation on November 18, 1988. Subsequent to its enactment, Federal agencies issued a common interim final rule to implement the act as it applied to grants (54 FR 4946, January 31, 1989). The rule was a subpart of the government-wide common rule on nonprocurement suspension and debarment. The agencies issued a final common rule after consideration of public comments (55 FR 21681, May 25, 1990). The common rule was updated in 2003, to, among other things, account for changes in circumstances and to ensure the rule was written in plain language. (68 FR 66534, November 26, 2003).

In 2004, OMB established Title 2 of the CFR as the new central location for OMB guidance and agency-implementing regulations concerning grants and agreements (69 FR 26276, May 11, 2004). In conjunction with that action, OMB announced its intention to replace common rules with OMB guidance that agencies could adopt in brief regulations. OMB began that process by proposing (70 FR 51863, August 31, 2005) and finalizing (71 FR 66431, November 15, 2006) government-wide guidance on nonprocurement suspension and debarment in 2 CFR part 180.

As the next step in that process, OMB finalized (74 FR 28149, June 15, 2009) government-wide guidance for policies and procedures to implement drug-free workplace requirements for financial assistance. The guidance requires each agency to replace the common rule on drug-free workplace requirements that the agency previously issued in its own CFR title with a brief regulation in 2 CFR adopting the government-wide policies and procedures.

On May 25, 2010, Commerce proposed new regulations to implement OMB's guidelines on drug-free workplace requirements (75 FR 29215). Specifically, Commerce proposed to take two regulatory actions: (1) Removing its drug-free workplace common rule from 15 CFR part 29; and (2) replacing the common rule with a regulation at 2 CFR part 1329 adopting OMB's government-wide policies and procedures for a drug-free workplace. Commerce proposed, and this final rule enacts, no substantive change to either the Department's or the Government's policies on a drug-free workplace, but instead merely moves the location of the policy in the Code of Federal Regulations from one part to another.

Commerce received no comments on this proposed rulemaking, and now is making that proposed action final. There are no changes from the proposed rule, which is adopted in final form as it was proposed.

OMB has determined this rule to be not significant for purposes of E.O. 12866.

Pursuant to section 605(b) of the Regulatory Flexibility Act (5 U.S.C. 605(b)), at the proposed rule stage, the Chief Counsel for Regulation certified to the Chief Counsel for Advocacy at the Small Business Administration that this rule will not have a significant economic impact on a substantial number of small entities. No comments were received in response to the proposed rule. Accordingly, no regulatory flexibility analysis was required, and none was prepared.

This regulatory action does not contain a Federal mandate that will result in the expenditure by State, local, and tribal governments, in aggregate, or by the private sector of $100 million or more in any one year.

This regulatory action does not impose any additional reporting or recordkeeping requirements under the Paperwork Reduction Act.

This regulatory action does not have Federalism implications, as set forth in Executive Order 13132. It does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

Accordingly, for the reasons set forth in the preamble, and under the authority of 5 U.S.C. 301 and 41 U.S.C.701 et seq., the U. S. Department of Commerce proposes to add 2 CFR part 1329 and remove 15 CFR part 29 as follows:

Black stem rust is one of the most destructive plant diseases of small grains that is known to exist in the United States. The disease is caused by a fungus (Puccinia graminis) that reduces the quality and yield of infected wheat, oat, barley, and rye crops. In addition to infecting small grains, the fungus lives on a variety of alternate host plants that are species of the genera Berberis, Mahoberberis, and Mahonia. The fungus is spread from host to host by windborne spores.

The black stem rust quarantine and regulations, which are contained in 7 CFR 301.38 through 301.38-8 (referred to below as the regulations), quarantine the conterminous 48 States and the District of Columbia and govern the interstate movement of certain plants of the genera Berberis, Mahoberberis, and Mahonia, known as barberry plants. The species of these plants are categorized as either rust-resistant or rust-susceptible. Rust-resistant plants do not pose a risk of spreading black stem rust or of contributing to the development of new races of the rust; rust-susceptible plants do pose such risks. Section 301.38-2 of the regulations includes a listing of regulated articles and indicates those species and varieties of the genera Berberis, Mahoberberis, and Mahonia that are known to be rust-resistant. Although rust-resistant species are included as regulated articles, they may be moved into or through protected areas if accompanied by a certificate. In accordance with the procedures described below under “Dates,” this direct final rule will add the following B. thunbergii varieties to the list of rust-resistant Berberis species in § 301.38-2(a)(1):

• B. thunbergii `BailAnna' Moscato;

• B. thunbergii `BailElla' Lambrusco;

• B. thunbergii `Daybreak';

• B. thunbergii `BailErin' Limoncello;

• B. thunbergii `BailJulia' Toscana;

• B. thunbergii `NCBT1';

• B. thunbergii x calliantha `NCBX3';

• B. thunbergii x media `NCBX1'; and

• B. thunbergii x media `NCBX2'.

The addition of these species is based on recent testing to determine rust resistance conducted by the Agricultural Research Service of the United States Department of Agriculture (USDA) at its Cereal Disease Laboratory in St. Paul, MN. The testing is performed in the following manner: In a greenhouse, the suspect plant or test subject is placed under a screen with a control plant—a known rust-susceptible species of Berberis, Mahoberberis, or Mahonia. Infected wheat stems, a primary host of black stem rust, are placed on top of the screen. The plants are moistened and maintained in 100 percent humidity. This causes the spores to swell and fall on the plants lying under the screen. The plants are then observed for 7 days at 20-80 percent relative humidity. If the rust-susceptible plant shows signs of infection after 7 days and the test plants do not, the test results indicate that the test plants are rust-resistant. This test must be performed 12 times, and all 12 tests must yield the same result before USDA can make a determination as to whether the test plants are rust-resistant. The test may be conducted on 12 individual plants, or it may be performed multiple times on fewer plants (e.g., six plants tested twice or three plants tested four times). The tests must be performed on new growth, just as the leaves are unfolding. Therefore, the tests are usually conducted in the spring or fall, during the growing season. All 12 tests generally cannot be conducted on the same day because of the plants' different growth stages. Based on over 30 years of experience with this test, we believe that 12 is the reliable test sample size on which USDA can make its determination. We do not know of any plant that was subsequently discovered to be rust-susceptible after undergoing the test procedure 12 times and being determined by USDA to be rust-resistant.

We are publishing this rule without a prior proposal because we view this action as noncontroversial and anticipate no adverse public comment. This rule will be effective, as published in this document, on March 22, 2016, unless we receive written adverse comments or written notice of intent to submit adverse comments on or before February 22, 2016.

Adverse comments are comments that suggest the rule should not be adopted or that suggest the rule should be changed.

If we receive written adverse comments or written notice of intent to submit adverse comments, we will publish a document in the Federal Register withdrawing this rule before the effective date. We will then publish a proposed rule for public comment.

As discussed above, if we receive no written adverse comments or written notice of intent to submit adverse comments within 30 days of publication of this direct final rule, this direct final rule will become effective 60 days following its publication. We will publish a document in the Federal Register before the effective date of this direct final rule confirming that it is effective on the date indicated in this document.

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

This analysis provides the basis, as required by the Regulatory Flexibility Act, for certification by the APHIS Administrator that the rule will not have a significant economic impact on a substantial number of small entities.

This direct final rule will amend 7 CFR 301.38-2 by adding nine varieties to the list of rust-resistant Berberis species and varieties. The nursery and floriculture industries that may be affected by this rule are largely composed of small entities. We expect these entities to benefit from the rule, by being able to market interstate barberry species and varieties that have been determined to be rust-resistant.

The introduction and spread of plant pests can result in damage to crops and losses to the U.S. agricultural sector. For the purpose of this analysis and following the Small Business Administration (SBA) guidelines, we note that a major segment of entities potentially affected by this rule are classified within the following industries: Nursery and Tree Production (NAICS 111421), and Floriculture Production (NAICS 111422). According to the Census of Agriculture, these two categories, along with Greenhouse production, which makes up the rest of NAICS 1114, included 52,777 farms in 2012, and represented 2.5 percent of all farms in the United States. These entities are considered small by SBA standards if their annual sales are $750,000 or less. Over 87 percent of the farms in these industries had annual sales of less than $500,000.

Barberry plants are not one of the crops tracked by the Census of Agriculture and therefore data on production and number of producers are not available. Nurseries producing barberry plant species and varieties will not be negatively affected. In fact, they will benefit from being able to market the nine varieties interstate. In addition, the rule does not require any additional reporting, recordkeeping, or other compliance measures beyond what is already in place.

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

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

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

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

Accordingly, 7 CFR part 301 is amended as follows:

NASA implements the requirements of Section 504 of the Rehabilitation Act of 1973 (section 504), which prohibits discrimination on the basis of disability in federally conducted and federally assisted programs or activities, through its regulations in Part 1251.

On November 13, 2014 NASA published a Notice of Proposed Rulemaking (NPRM) in the Federal Register at 79 FR 67384 to amend its section 504 regulations to incorporate changes to the meaning and interpretation of the section 504 definition of disability required by the Americans with Disabilities Act Amendments Act of 2008 (ADA Amendments Act), include an affirmative statement of the longstanding requirement for reasonable accommodations in programs, services, and activities, and include a definition of direct threat and a provision describing the parameters of the existing direct threat defense to a claim of discrimination. The rule also proposed to clarify the existing obligation to provide auxiliary aids and services to qualified individuals with disabilities, update the methods of communication that recipients may use to inform program beneficiaries of their obligation to comply with section 504 to reflect changes in technology, adopt updated accessibility standards applicable to the design, construction, and alteration of buildings and facilities, establish time periods for compliance with these updated accessibility standards, and provide NASA with access to recipient data and records to determine compliance with section 504, and made administrative updates to correct titles.

NASA also proposed amending its section 504 regulations to incorporate changes required by the Rehabilitation Act Amendments of 1992 (1992 Amendments) by revising subpart 1251.2—Employment Practices (federally assisted programs) and § 1251.540—Employment (federally conducted programs) and instead referencing the U.S. Equal Employment Opportunity Commission's (EEOC's) Americans with Disabilities Act of 1990 (ADA) title I regulation. NASA also proposed updating outdated terminology and references that currently exist in Part 1251 including changing the word “handicapped” and similar variations of that word that appear throughout part 1251, and replacing it with “people first” language (e.g., “individuals with disabilities”) consistent with the requirements of the 1992 Amendments.

This final rule has been reviewed and approved by the U.S. Department of Justice (DOJ) in the exercise of its section 504 coordination authority under Executive Order 12250.

NASA received only one comment from a member of the public in response to its NPRM. This individual raised three concerns which are discussed below.

The commenter suggested that NASA simplify its language by replacing the phrase “nonhandicapped persons” wherever it is used in the regulations with the phrase “persons without a disability” rather than the phrase proposed by NASA, “persons who do not have a disability” NASA agrees and is making this change, except that instead of the phrase “persons without a disability,” NASA will use the phrase “individuals without disabilities.”

The commenter also objected to NASA's inclusion of the activity of “speaking” in the list of major life activities in proposed § 1251.102(h)(2)(ii)(A). In the commenter's view, because the list already provided “communicating” as an example, including “speaking” was redundant and unnecessary. NASA disagrees with the commenter. The ADA Amendments Act specifically references both “speaking” and “communicating” in its list of examples of major life activities. See 42 U.S.C. 12102(2)(A). NASA's final rule no longer spells out a list of examples of major life activities, however, because the rule now incorporates by reference the definition of disability contained in DOJ's ADA title II regulation at 29 CFR part 35.1

The commenter also suggested that NASA revise the definition of disability in § 1251.102(h)(2)(iii)(A)(2) to narrow its application to fewer individuals with disabilities because in the commenter's view, it is too broad. NASA declines to adopt this recommendation as it proposes a change that is inconsistent with the changes to section 504 that were made by the ADA Amendments Act. Congress enacted the ADA Amendments Act to restore the understanding that the definition of disability shall be broadly construed and applied without extensive analysis, in response to the Supreme Court decisions in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), which interpreted the term “substantially limits” to require a greater degree of limitation than was intended by Congress. The ADA Amendments Act also amended the Rehabilitation Act of 1973 to conform the section 504 definition of disability at 29 U.S.C. 705(20)(B) to the ADA Amendments Act. NASA has decided, that in order to ensure, as Congress intended, that its section 504 definition of disability is interpreted consistently with the ADA Amendments Act, the final rule will incorporate by reference the definition of disability specified in the ADA title II regulation at 28 CFR part 35.

Since the publication of the NPRM, NASA has added definitions of “drug abuse” and “illegal use of drugs,” and a provision specifically addressing the application of section 504 to persons who use illegal drugs. These provisions were added to conform the regulations to the express requirements of the Rehabilitation Act of 1973. See 29 U.S.C. 705(10) and (20)(C)(i-iii). NASA has also added a safe harbor provision to § 1251.301 to eliminate an inconsistency between the requirements for existing facilities in title II of the ADA and the corresponding requirements for section 504.

Finally, NASA has made a number of nonsubstantive clarifying edits and corrections to the regulatory text.

NASA's section 504 federally assisted regulation at § 1251.1 applies to recipients to whom the Agency extends Federal financial assistance, such as research, education, and training grants, and cooperative agreements, as well as programs, services, and activities conducted by NASA. NASA's section 504 federally assisted regulation at § 1251.103 prohibits denial of the benefits of, exclusion from participation in, or other discrimination against qualified individuals with disabilities in programs or activities because a recipient's facilities are inaccessible to or unusable by persons with disabilities. Many of the entities that receive financial assistance from NASA are also covered by Title II of the ADA (title II), which prohibits discrimination on the basis of disability by public entities (i.e., state and local governments and their agencies) or Title III of the ADA (title III), which prohibits discrimination on the basis of disability by: (1) Public accommodations (i.e., private entities that own, operate, lease, or lease to places of public accommodation); (2) newly constructed and altered commercial facilities; and (3) private entities that offer certain examinations and courses related to educational and occupational certification. Where possible and appropriate, NASA has tried to ensure consistency with its revised section 504 regulatory text to maintain consistency with the corresponding ADA requirements.

The ADA Amendments Act was signed into law in September 2008 and became effective on January 1, 2009. Congress enacted the ADA Amendments Act in order to ensure that the definition of disability is broadly construed and applied without extensive analysis, in response to Supreme Court decisions that had too narrowly interpreted the ADA's definition of a disability. The ADA Amendments Act not only amended the meaning and interpretation of the definition of disability applicable to the ADA, it also amended the Rehabilitation Act of 1973 to require similar changes to the meaning and interpretation of the definition of disability at 29 U.S.C. 705(20)(B) applicable to section 504. In the NPRM, NASA proposed to amend its section 504 regulations to include specific provisions implementing these revised requirements.2 In the interest of uniform application of the definition of disability across both the ADA and section 504, NASA has decided that rather than spelling out the meaning and interpretation of the definition of disability in its own regulations, it is adopting the Department of Justice's current definition of disability at 28 CFR part 35, and once that definition is revised to reflect the requirements of the ADA Amendments Act, that revised definition will automatically apply to these regulations. Due to the changes that the ADA Amendments Act made to the application of the definition of disability, participants in recipients' programs, services, and activities who, in the past decade, may not have been determined to have a disability under section 504 and title II may now be found to have a disability under those laws. Section 504 and the ADA define disability as (1) a physical or mental impairment that substantially limits a major life activity; (2) a record of such impairment; or (3) being regarded as having such an impairment (29 U.S.C. 705(9)(B); 42 U.S.C. 12102(1)). The ADA Amendments Act does not alter these three basic elements of the definition of disability in the ADA and section 504, but it significantly changes how the term “disability” is to be interpreted and adds important rules of construction to inform that interpretation. Specifically, Congress directed that the definition of disability shall be construed broadly and that the determination of whether an individual has a disability should not demand extensive analysis (42 U.S.C. 12102).

Although NASA's original section 504 federally assisted and federally conducted regulations referenced the provision of auxiliary aids,3 they did not include a definition of the term. The final rule includes a definition for auxiliary aids and services which is consistent with the definition used in the ADA title II regulation at 28 CFR 35.104. The definition of auxiliary aids and services includes Video Remote Interpreting (VRI) as an example of an auxiliary aid or service. NASA notes that 28 CFR 35.160(d) and 36.303(f) of the ADA title II and title III regulations set forth specific performance standards for the use of VRI.

NASA's rule also revises subpart 1251.2—Employment Practices (federally assisted programs) and § 1251.540—Employment (federally conducted programs) to conform to the 1992 Amendments (Pub. L. 102-569, sec. 506), which amended title V of the Rehabilitation Act to make the same employment standards set forth in title I of the ADA apply to employment discrimination under section 504. As such, the proposed rule deletes the existing requirements related to discriminatory employment practices and references the standards applied under Title I of the ADA (42 U.S.C. 12111 et seq.), the EEOC's ADA title I regulation at 29 CFR part 1630, as amended, and, to the extent such sections relate to employment, the provisions of sections 501 through 504 and 510 of the ADA (42 U.S.C. 12201-12204 and 12210).

In this final rule, NASA is clarifying its role in the processing and coordination of complaints alleging employment discrimination by its recipients. Title I of the ADA (title I) prohibits discrimination against individuals with disabilities employed in a business that has fifteen or more employees. Title I is enforced by the EEOC, which is the designated Federal agency for the processing and adjudication of all complaints filed under title I. Many of the Agency's recipients may fall under both the jurisdiction of title I and section 504. NASA has authority to receive complaints of employment discrimination by recipients under section 504 and has developed procedures to identify when NASA has jurisdiction to process such complaints or when they must be referred to the EEOC or DOJ for processing. In order to avoid duplication of investigative and enforcement efforts, NASA will process and coordinate any complaints filed under this Part in accordance with the EEOC procedures set forth in 29 CFR part 1640 and DOJ procedures set forth at 28 CFR part 37 (Procedures for Coordinating the Investigation of Complaints or Charges of Employment Discrimination Based on Disability Subject to the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973).

In the final rule, NASA also clarifies its role in the processing and adjudication of section 504 complaints in its federally conducted programs.

NASA's original section 504 federally assisted regulation at § 1251.103(b)(3) provides that “[r]ecipients shall take appropriate steps to ensure that no handicapped individual is denied the benefits of, excluded from participation in, or otherwise subjected to discrimination in any program or activity receiving Federal financial assistance because of the absence of auxiliary aids for individuals with impaired sensory, manual, or speaking skills.”

The final rule clarifies this existing obligation to provide auxiliary aids and services by using affirmative language explaining this obligation. Similar language is already included in NASA's federally conducted regulation at § 1251.560 (Communications).

NASA's existing section 504 regulation at § 1251.107(a) requires a recipient that employs 15 or more persons to take appropriate initial and continuing steps to notify participants, beneficiaries, applicants, and employees, including those with hearing and vision disabilities, and unions or professional organizations holding collective bargaining or professional agreements with the recipient that it does not discriminate on the basis of disability in violation of section 504 and this part. The notification shall state, where appropriate, that the recipient does not discriminate in admission, access to, treatment, or employment in, its programs or activities. The notification shall also include an identification of the responsible employee designated to coordinate the recipient's efforts to comply with section 504 pursuant to § 1251.106(a). The regulation requires a recipient to make the initial notification required by this paragraph within 90 days of the effective date of this part. This regulation also delineates a choice of methods of initial and continuing notification “that may include the posting of notices, publication in newspapers and magazines, placement of notices in recipient's publication, and distribution of memoranda or other written communications.” NASA recognizes that the methods by which a recipient communicates with interested persons have changed significantly since this regulation was promulgated and this regulation, as currently written, does not reflect the current and future state of information dissemination. With the advent of the broad application of the Internet and the World Wide Web, as well as electronic publishing, electronic mail (email), text messaging, and social media platforms, NASA has determined that the regulation does not adequately include electronic methods of communication. Furthermore, NASA's grant recipients currently rely on their Web sites, email, text messaging, and social media to communicate with and provide information to the beneficiaries of their programs, services, and activities. Many of the publications that previously were available in print, such as pamphlets, brochures, maps, course catalogs, policies, and procedures, are now posted on recipients' Web sites and can be printed or downloaded by an interested person viewing the Web site. In revising the regulation to include electronic communications, NASA is also providing its grant recipients the ability to provide this information in a more cost-effective and expeditious manner than by relying on printed media. Information or programs provided to the public on recipients' Web sites should be provided in accessible formats in order to ensure equal access by individuals with communication disabilities to the recipients' programs, services, and activities.

NASA's existing section 504 regulation at § 1251.302(c) requires that, if construction of a recipient's facility commenced after the effective date of the regulation (January 18, 1991), the facility must be designed and constructed so that it is readily accessible to and usable by persons with disabilities. This regulatory provision also requires that facility alterations commenced after January 18, 1991, that affect or may affect the facility's usability, must be accomplished so that, to the maximum extent feasible, the altered portion of the facility is readily accessible and usable by persons with disabilities.

For facilities subject to the new construction and alterations requirements, the NASA regulation at § 1251.302(c) has always incorporated by reference an accessibility design standard, such that construction or alterations in conformance with that standard would be deemed in compliance with NASA's section 504 regulation. Under the original regulation, new construction or alterations made in conformance with the Uniform Federal Accessibility Standards (UFAS) are deemed to be in compliance with NASA's section 504 regulation, although a recipient may depart from UFAS when other methods provide equivalent or greater access to and usability of the facility.

The adoption of UFAS as an accessibility design standard in NASA's section 504 regulation occurred in 1991 as part of a joint rulemaking with other Federal agencies, led by DOJ pursuant to its coordinating authority for section 504 under Executive Order 12250. (51 FR 26862 July 28, 1986, as amended and 55 FR 52138, 52140, December 19, 1990). NASA and the other participating agencies adopted UFAS (effective January 18, 1991) to diminish the possibility that some recipients of Federal financial assistance would face conflicting enforcement standards either between section 504 and the Architectural Barriers Act of 1968, or among the section 504 regulations of different Federal agencies. (55 FR 52136-37 (1990)).

DOJ's 1991 title II ADA regulation incorporated by reference two sets of standards for new construction and alterations: UFAS and the 1991 ADA Standards for Accessible Design (1991 Standards), except that the elevator exemption contained at sections 4.1.3(5) and 4.1.6(1)(k) of the 1991 Standards did not apply. The 1991 title II ADA regulation also permitted departures from the particular requirements of either standard by the use of other methods when it was clearly evident that equivalent access to the facility or part of the facility was thereby provided. UFAS was included as an option for title II entities because it was deemed the accessibility standard under existing section 504 accessibility regulations. However, UFAS was not an accessibility option under the ADA for title III entities, even if they were also subject to an agency section 504 regulation.

On September 15, 2010, DOJ published revised title II and title III ADA regulations that included the adoption of revised accessibility standards, the 2010 ADA Standards for Accessible Design (2010 Standards). (75 FR 56164). The 2010 Standards are based on the 2004 ADA Accessibility Guidelines, which were adopted by the U.S. Access Board in 2004 (36 CFR parts 1190 and 1191), but include additional scoping and technical requirements. The 2010 Standards, which now supersede the 1991 Standards, were adopted by DOJ through formal rulemaking and were subject to substantial scrutiny and deliberation, including consideration of costs and benefits. Compliance with the 2010 Standards is required for all new construction and alterations that commenced on or after March 15, 2012 for entities subject to both titles II and III of the ADA. (75 FR 56164, 56182 (Sept. 15, 2010)). As of March 15, 2012, UFAS was no longer an option for compliance with title II.

In the preamble to the final title II regulation, DOJ stated that Federal agencies that extend Federal financial assistance should revise their section 504 regulations to adopt the 2010 Standards as section 504 standards for new construction and alterations (75 FR 56164, 56213 Sep. 15, 2010). DOJ also stated its intent to work with Federal agencies “to revise their section 504 regulations in the near future to adopt the 2010 Standards as the appropriate accessibility standard for their recipients.”

As proposed in the NPRM, in coordination with DOJ, NASA is adopting the 2010 Standards as set forth in 28 CFR part 35, in lieu of UFAS, for new construction and alterations commencing on or after one year from the publication date of the final rule in the Federal Register. In the time period between publication of this rule and the compliance date for the 2010 Standards, the rule provides that recipients may choose to comply with either UFAS or the 2010 Standards. For the reasons discussed below, the final rule specifies that all buildings and facilities newly constructed or altered by recipients in compliance with the 2010 Standards shall comply with the scoping and technical requirements for a “public building or facility” in the 2010 Standards, regardless of whether the recipient is a public entity or private entity.

Under NASA's current section 504 federally assisted regulation, the same title II accessibility standards for new construction and alterations are applied to all recipients regardless of whether they are public or private entities with an obligation to comply with title II or title III of the ADA, respectively. That is, both private and public recipients are subject to the same requirements for the purposes of compliance with NASA's section 504 federally assisted regulation. The 2010 Standards impose several different requirements for buildings and facilities covered by title II as compared to buildings and facilities covered by title III. For example, Exception 1 of section 206.2.3 of the 2010 Standards exempts certain multistory buildings owned by private entities from the requirement to provide an elevator. This exemption does not apply to buildings owned by public entities. Similarly, the 2010 Standards specify TTY requirements for public buildings that are different than those required for private buildings. In order to maintain consistency in the requirements applicable to all its recipients, regardless of whether they are public or private entities, NASA is requiring all buildings and facilities covered by its section 504 federally assisted rule to comply with the scoping and technical requirements for a “public building or facility,” which are the requirements for buildings subject to title II of the ADA.

Compliance with the 2010 Standards is required one year from the publication date of the final rule in the Federal Register. In the period between the effective date of the final rule and the compliance date for new construction and alterations announced in the final rule, recipients shall be permitted to choose to use the 2010 Standards in lieu of UFAS.4 However, regardless of which accessibility standard recipients choose to use during this time period, recipients must consistently rely on one accessibility standard and may not designate one accessibility standard for one part of a facility and the other for the remainder.

Under § 1251.301(b) of NASA's original section 504 federally assisted regulation, recipients that choose to make structural changes to their facilities in order to comply with the section 504 program accessibility requirements, must make those changes in compliance with the requirements of § 1251.302(c), which deems UFAS as the relevant accessibility standard. NASA's revision of § 1251.302 to adopt the 2010 Standards, raises the question of whether recipients will have to update elements in UFAS-compliant buildings or facilities that are not otherwise being altered, in order to comply with the 2010 Standards. When DOJ revised its title II ADA regulation to adopt the 2010 Standards, it included a “safe harbor” provision in the regulation that provided that elements in existing buildings that complied with the requirements in UFAS or the 1991 Standards did not have to be modified to comply with corresponding requirements in the 2010 Standards. In order to ensure consistency between the requirements for existing facilities in title II of the ADA and the corresponding program accessibility requirements in section 504, NASA has added a similar “safe harbor” provision in the final rule. This provision, which is directly modeled after the title II “safe harbor,” clarifies that for the purposes of complying with NASA's program accessibility requirements for existing facilities, elements that have not been altered in existing buildings or facilities on or after the date that is one year after the date of publication of this Final Rule in the Federal Register and that comply with the technical and scoping specifications for those elements in UFAS, Appendix A to 41 CFR part 101-19.6 (1999 ed.), 49 FR 31528, app. A (Aug. 7, 1984), are not required to be brought into compliance with the requirements set forth in the 2010 Standards. Without this provision, recipients that are subject to titles II or III of the ADA and NASA's section 504 rule would be held to different requirements; they would not be required by the ADA to modify already compliant elements based on UFAS (or the 1991 Standards) in existing facilities to comply with the 2010 Standards, but would be required to do so under NASA's section 504 rule. The safe harbor provision incorporated into NASA's final section 504 rule will avoid this anomalous result.

The current NASA section 504 regulation at § 1251.301(e) requires recipients to adopt and implement procedures to ensure that interested individuals, including individuals with vision or hearing disabilities, can obtain information as to the existence and location of services, activities, and facilities that are accessible to and usable by individuals with disabilities. Since the publication of the NPRM, NASA has determined that the current NASA section 504 federally assisted regulation does not include a provision that is contained in the section 504 regulations of other Federal agencies that requires recipients to provide signs at a primary entrance to each of its inaccessible facilities directing users to an accessible facility or to a location at which they can obtain information about accessible facilities. This provision also requires that the international symbol for accessibility be used at each accessible entrance to a facility. NASA is adding this provision to § 1251.301(e) in order to conform to section 504 regulatory standards across the Government.

Triggering event: The rule also adopts the approaches used in both title II at 28 CFR 35.151(c) and title III at 28 CFR 36.406(a) to determine the “triggering event” for applying the standards to new construction and alterations under section 504. For NASA recipients that are public entities who would otherwise comply with title II (i.e., state and local governments and their agencies and organizations), the triggering event for application of the 2010 Standards under section 504 will be the commencement of physical construction or alterations. For private entities who would otherwise comply with title III (i.e., privately owned and operated organizations), the triggering event for the application of the 2010 Standards under section 504 is the date of: (a) The last application for a building permit or permit extension certified to be complete by a state, county, or local government; (b) in those jurisdictions where the government does not certify completion of applications, the date when the last application for a building permit or permit extension is received by the State, county, or local government; or (c) if no permit is required, the start of physical construction or alterations. For both public and private entities, NASA has adopted the language found at 28 CFR 35.151(c)(4) in title II and 28 CFR 36.406(a)(4) in title III to make it clear that the date of ceremonial groundbreaking or the date a structure is razed to make it possible for construction of a facility to take place does not qualify as the commencement of physical construction.

In Southeastern Community College v. Davis, 442 U.S. 397, 99 S. Ct. 2361 (1979), the Supreme Court held that a person is not protected by section 504 if, in order to meet reasonable eligibility standards, the person needs program or policy modifications that would fundamentally alter the nature of the provider's program or impose undue financial and administrative burdens. In Davis, the Court upheld the community college's denial of admission to a nursing program applicant with a hearing disability who had requested that the college provide a supervisor to aid her in communicating with patients, to dispense with certain required courses, and to train her to hold some, but not all, positions available to registered nurses. Although the Court also opined in Davis that there may be situations where a refusal to modify an existing program might be discriminatory, the Court analyzed the case in terms of the proper interpretation of the statutory term “otherwise qualified.” As a result, agency section 504 regulations 5 originally promulgated after Davis addressed the obligation to provide reasonable accommodations or reasonable modifications in the definition section for “qualified handicapped person,” rather than in the nondiscrimination section.6

Subsequently, in Alexander v. Choate, 469 U.S. 287, 105 S.Ct. 712 (1985), the Court clarified its Davis analysis. In Alexander, the Court described Davis as striking a balance between the need to provide qualified individuals with disabilities meaningful access to the benefit a grantee offers and the legitimate interests of Federal grantees in preserving the integrity of their programs. See 469 U.S. at 300-301. It further stated that, although its opinion in Davis “addressed that portion of section 504 that requires that a handicapped individual be `otherwise qualified' before the nondiscrimination principle of section 504 becomes relevant, . . . the question of who is `otherwise qualified' and what actions constitute `discrimination' under the section would seem to be two sides of a single coin; the ultimate question is the extent to which a grantee is required to make reasonable modifications [accommodations] in its programs for the needs of the handicapped.” 469 U.S. at 300, note 19.

In keeping with these Supreme Court decisions, over the past decades Federal courts and Federal agencies have regularly acknowledged Federal agencies' affirmative obligation to provide qualified individuals with disabilities reasonable accommodations in programs, services, and activities. However, their section 504 regulations have lacked a specific provision implementing this requirement.

When the ADA was enacted, Congress stated the obligation to make reasonable changes in policies, practices, or procedures when necessary to avoid discrimination on the basis of disability as a positive requirement. See U.S.C. 12182(b)(2)(A)(ii). DOJ incorporated this requirement into its ADA regulations at 28 CFR 35.130(b)(7) and 28 CFR 36.302. Accordingly, we have added provisions to the section 504 rules at §§ 1251.111 (federally assisted programs) and 1251.581 (federally conducted programs) stating that a recipient or the Agency, respectively, must provide reasonable accommodations when necessary to avoid discrimination on the basis of disability, unless the recipient or the Agency can show that the accommodations would result in a fundamental alteration in the nature of its service, program, or activity or impose undue financial and administrative burdens.

NASA notes that title I of the ADA also uses the term “reasonable accommodation” to apply to changes in policies, practices and procedures with respect to employment, but the specific ADA title I regulatory requirements related to this term should not be applied to non-employment related requests for reasonable accommodations under section 504.

NASA has revised § 1251.102, which adds paragraph (n) defining “qualified individual with a disability.” The definition for “qualified individual with a disability” in this final rule is also revised in order to update the references to employment to cite to the EEOC's ADA title I regulation and to streamline the language.

In School Bd. of Nassau County, Fla. v. Arline, 480 U.S. 273, 107 S.Ct. 1123 (1987), the Supreme Court directed that the determination of whether a person with a contagious disease is otherwise qualified must be made on an individualized basis, taking into account the: Nature of the risk (how the disease is transmitted); duration of the risk (how long the carrier is infectious); severity of the risk (what the potential harm is to third parties), and; probability the disease will be transmitted and will cause varying degrees of harm. The individualized inquiry must include appropriate findings of fact about these factors, based on reasonable medical judgments given the state of medical knowledge. Based on these findings, a determination must be made as to whether the individual's disability could be reasonably accommodated.7 Congress incorporated this concept into the ADA calling it a “direct threat.” The ADA regulations for titles II and III include specific provisions addressing determinations of “direct threat” in §§ 35.104 and 36.104 (definitions) and §§ 35.139 and 36.208. Accordingly, we revised our section 504 regulation to include comparable language addressing direct threat consistent with Arline and the ADA title II regulation. See §§ 1251.110 (federally assisted programs) and 1251.580 (federally conducted programs).

Federal agencies have the responsibility to ensure that their recipients comply with civil rights regulations that prohibit discrimination in programs, services, and activities that receive Federal financial assistance and generally have provisions in their regulations that provide the authority for agencies to ensure compliance and conduct enforcement activities. NASA's original section 504 regulation at § 1251.400 incorporates by reference several provisions in NASA's regulation implementing Title VI of the Civil Rights Act of 1964, at 14 CFR part 1250 that authorize NASA to conduct compliance activities to ensure that recipients do not discriminate on the basis of disability in their programs, services, and activities. These provisions require NASA to: Conduct periodic compliance reviews of recipient programs; receive, investigate and resolve complaints of discrimination on the basis of disability alleged by recipient beneficiaries; 8 conduct hearings to determine whether Federal financial assistance is to be suspended, revoked, or withheld due to a recipient's failure to comply with any provisions of section 504; 9 and they provide for judicial review of NASA's actions to enforce section 504.10 However, the original section 504 regulation did not incorporate by reference three additional title VI regulatory provisions that are included in other Federal agency section 504 regulations that pertain to procedures for compliance and are critical to effective enforcement of section 504. In contrast, NASA's civil rights regulations that prohibit discrimination on the basis of sex (Title IX of the Education Amendments of 1972) 11 and age (Age Discrimination Act of 1975),12 as well as title VI, do have these provisions.

NASA has amended its section 504 federally assisted regulation at § 1251.400 to incorporate by reference those title VI regulatory provisions, originally omitted from the existing regulation. Accordingly, NASA incorporated by reference into § 1251.400, NASA's title VI regulation at § 1250.105 (Compliance information), which: Requires NASA to seek the cooperation of recipients in obtaining compliance with this part; requires recipients and subrecipients to keep records and provide reports to NASA upon request to determine compliance with this part; requires recipients to permit NASA to have access to records and sources of information to determine compliance with this part; and requires recipients to make available information regarding provisions of this part and their applicability to the program for which the recipient receives Federal financial assistance in a manner deemed appropriate by NASA to apprise interested persons of the rights and protections afforded to them by this part. NASA also incorporated by reference into § 1251.400, NASA's title VI regulation at § 1250.107 (Procedures for effecting compliance), which delineates the process by which NASA will effectuate compliance with this part through the termination, suspension, or refusal to grant or continue Federal financial assistance if a recipient's noncompliance with this part cannot be remedied through informal means. Lastly, NASA incorporated by reference into § 1251.400, NASA's title VI regulation at § 1250.109 (Decisions and notices) which delineates the process for rendering decisions and issuing findings in accordance with § 1250.107.

In addition to its revisions to its section 504 federally assisted regulation at part 1251, NASA also revised its section 504 regulation at § 1251.5 that prohibits discrimination on the basis of disability in programs, services, and activities conducted by NASA. In 1978, Congress extended application of section 504 to programs and activities conducted by Federal Executive agencies and the United States Postal Service. Pursuant to Executive Order 12250, the Department of Justice developed a prototype regulation to implement the 1978 amendment for federally conducted programs and activities. More than 80 Federal agencies, including NASA, issued regulations previously based on that prototype, prohibiting discrimination based on disability in the programs and activities they conduct. Despite the large number of regulations implementing section 504 for federally assisted and federally conducted programs and activities, there is very little variation in their substantive requirements, or even in their language. The regulatory revisions in this rulemaking impose similar requirements for NASA's federally conducted and NASA's federally assisted regulations, with the exception of the applicable accessibility standards for new and altered facilities.13

Consistent with its revision to the definition of disability in § 1251.102(g), NASA has revised the definition of “disability” at § 1251.503(e) to incorporate by reference the definition of disability in the Department of Justice's title II ADA regulation at 28 CFR part 35. NASA also revised the definition of “direct threat” and added definitions of “drug abuse” and “illegal use of drugs” to § 1251.503 to conform to the corresponding regulatory provisions in the federally assisted rule. NASA added a new provision incorporating statutory requirements addressing the application of section 504 to persons who use illegal drugs, and regulatory standards for direct threat, employment, and reasonable accommodation in the federally conducted programs regulation to conform with the companion regulatory standards in the federally assisted regulation for direct threat found at § 1251.110, reasonable accommodation found at § 1251.111, illegal use of drugs found at § 1251.113, and employment found at § 1251.2. NASA also has conformed the language in § 1251.550(a), which addresses the limitations on the obligation to provide program accessibility in historic preservation programs conducted by the Agency, to the language used in the corresponding provision in the Department of Justice's title II ADA regulation at 28 CFR 35.150 (a)(2), by removing the phrase “substantial impairment of historical features” of historical properties and replacing it with “threaten or destroy the historic significance” of these properties. NASA has also deleted the definition of “substantial impairment” at § 1251.503 because the term is no longer used with respect to program accessibility in existing facilities and thus, the definition is no longer necessary. Last, NASA revised its regulation at § 1251.551 to update the reference to the GSA standards applicable to new construction, alterations and leases of Federal buildings subject to the Architectural Barriers Act, which is no longer found at the GSA Federal Management Regulation 41 CFR 101-19.600 to 101-19.607, but is now found at 41 CFR part 102-76, subpart C.

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, reducing costs, harmonizing rules, and promoting flexibility. This Final Rule has been designated a “significant regulatory action,” although not an economically significant one, under section 3(f) of Executive Order 12866. Accordingly, this rule has been reviewed by the Office of Management and Budget.

NASA certifies that this 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.

This rule does not contain an information collection requirement subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

Section 4(2) of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1503(2), excludes from coverage under that Act any proposed or final Federal regulation that “establishes or enforces any statutory rights that prohibit discrimination on the basis of race, color, religion, sex, national origin, age, handicap, or disability.” Accordingly, NASA's rulemaking is not subject to the provisions of the Unfunded Mandates Reform Act.

This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996 (as amended), 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

For the reasons stated in the preamble, the National Aeronautics and Space Administration amends 14 CFR part 1251 as follows:

In the Federal Register of Thursday, September 17, 2015 (80 FR 55908), FDA published the final rule “Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Controls for Human Food” with some editorial and inadvertent errors. This action is being taken to correct inadvertent errors by making the following correcting amendments.

In the Federal Register of Thursday, September 17, 2015 (80 FR 56170), FDA published the final rule “Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Controls for Food for Animals” with some editorial and inadvertent errors. This action is being taken to correct those errors by making the following correcting amendments.

Accordingly, FDA is amending 21 CFR part 507 with the following technical amendments:

Pursuant to the authority granted in 33 U.S.C. 1605, the DoN amends 32 CFR part 706.

This amendment provides notice that the DAJAG (Admiralty and Maritime Law), under authority delegated by the Secretary of the Navy, has certified that USS MONTGOMERY (LCS 8) is a vessel of the Navy which, due to its special construction and purpose, cannot fully comply with the following specific provisions of 72 COLREGS without interfering with its special function as a naval ship: Annex I paragraph 2(a)(i), pertaining to the location of the forward masthead light at a height not less than 12 meters above the hull; Annex I, paragraph 2(f)(i), pertaining to the placement of the masthead light or lights above and clear of all other lights and obstructions; Annex I, paragraph 3(a), pertaining to the location of the forward masthead light in the forward quarter of the ship, and the horizontal distance between the forward and after masthead light; Annex I, paragraph 3(c), pertaining to the task light's horizontal distance from the fore and aft centerline of the vessel in the athwartship direction. The DAJAG (Admiralty and Maritime Law) has also certified that the lights involved are located in closest possible compliance with the applicable 72 COLREGS requirements.

Moreover, it has been determined, in accordance with 32 CFR parts 296 and 701, that publication of this amendment for public comment prior to adoption is impracticable, unnecessary, and contrary to public interest since it is based on technical findings that the placement of lights on this vessel in a manner differently from that prescribed herein will adversely affect the vessel's ability to perform its military functions.

For the reasons set forth in the preamble, the DoN amends part 706 of title 32 of the Code of Federal Regulations as follows:

Beginning in 1998 with the enactment of section 347 of the Omnibus Consolidated Appropriations Act, 1999 (Pub. L. 105-277), the Forest Service has been authorized to enter into stewardship projects since 1999 (16 U.S.C. 2104 note); however, this authority was not permanent. The 2014 Act makes the authority permanent through an amendment to HFRA. With limited exceptions, the permanent authority is identical to the temporary authority. Section 604(b) of HFRA provides that the Forest Service, “via agreement or contract as appropriate, may enter into stewardship contracting projects with private persons or other public or private entities to perform services to achieve land management goals for the national forests and the public lands that meet local and rural community needs.” Section 604(d)(1) provides that a source for performance of a stewardship agreement or contract must be selected on a best value basis. Section 604(d)(4) further provides that the Forest Service can apply the value of timber or other forest products removed under the project as an offset against the value of the services received by the Forest Service. In accordance with section 604(e), the Forest Service can collect funds received under a stewardship project if doing so is a secondary objective of the project.

Pursuant to section 604 of HFRA, the land management goals of a stewardship project may include any of the following:

1. Road and trail maintenance or obliteration to restore or maintain water quality;

2. Soil productivity, habitat for wildlife and fisheries, or other resource values;

3. Setting of prescribed fires to improve the composition, structure, condition, and health of stands or to improve wildlife habitat;

4. Removing vegetation or other activities to promote healthy forest stands, reduce fire hazards, or achieve other land management objectives;

5. Watershed restoration and maintenance;

6. Restoration and maintenance of wildlife and fish; and

7. Control of noxious and exotic weeds and reestablishing native plant species.

The Forest Service has utilized several types of contracts to implement the stewardship end result contracting authority. Generally, a contract that resulted in the Forest Service's receipt of service work in an amount greater than the value of the timber or forest product removed by a contractor utilized a contract that resembled a procurement of service contract. A contract that resulted in the Forest Service's receipt of service work in an amount less than the value of the timber or forest product removed by a contractor utilized a contract that resembled a timber sale contract.

Recognizing the unique nature of the use of timber and forest products as consideration for the services received under stewardship contracts and agreements, section 604(d)(2) provides that the Secretary may consider a stewardship contract to be a contract for the sale of property under terms prescribed by the Secretary without regard to any other provision of law. Accordingly, section 223.301 of this rule continues the use of the different types of contracts based on the value of the products removed and services received. In order to ensure consistency in the operation of these projects to the extent that is practicable, sections 223.303 and 223.304 provide for the use of existing regulatory provisions. Section 223.303 sets forth the rules for contracts that are principally the acquisition of a service and rely upon the Federal Acquisition Regulations (FAR) set forth in Title 48 of the Code of Federal Regulations. Section 223.304 sets forth the rules for contracts that are principally sales of property contracts and generally rely upon existing Forest Service Timber Sale regulations set forth in 36 CFR part 223, subparts A & B, except as provided in section 223.304(a).

The regulations in 2 CFR 200, as adopted and supplemented by the USDA in 2 CFR 400, 416 and 422 set forth the general rules that are applicable to all grants and cooperative agreements made by the Department of Agriculture. Because the Forest Service's use of agreements entered into under this part are not financial assistance for the benefit of the recipient but instead are entered into for the benefit of the Forest Service, the assistance regulations in 2 CFR 200, as adopted and supplemented by the USDA in 2 CFR 400, are not applicable to such agreements.

While this final rule generally sets forth the manner in which the Forest Service has implemented stewardship projects since 1999, this final rule also sets forth with greater clarity the process for selecting the appropriate mechanism to implement a stewardship end result project. Section 604(d) of HFRA requires that a source for performance of a stewardship agreement or contract be selected on a best-value basis. A stewardship agreement or contract may also be entered into notwithstanding subsections (d) and (g) of section 14 of the National Forest Management Act of 1976 (16 U.S.C. 472a). The timber included in all stewardship contracts and agreements is appraised according to standard Forest Service appraisal methods, as described in Forest Service Manual 2420.

With the enactment of section 8205 of the 2014 Act, and the corresponding HFRA amendments, the Forest Service's authority to enter into Stewardship End Result Contracting Projects is now permanently authorized. Since the primary purpose of this rule is to set forth contracting procedures that were used to implement the prior statutory provisions that were not of a permanent nature, it has been determined that this rule should become effective upon publication.

This final rule would revise Part 223 to set forth the regulations used in the conduct of Stewardship End Result Contracting Projects. The Forest Service has determined that this final rule falls within this category of actions and that no extraordinary circumstances exist which would require preparation of an environmental assessment or environmental impact statement.

We are issuing this final rule without prior notice and opportunity for comment. The Administrative Procedures Act (APA) exempts rules “relating to agency management or personnel or to public property, loans, grants, benefits, or contracts” from the statutory requirement for prior notice and opportunity for comment, as well as the statutory requirement for 30 days to pass before the action can be effective.

This final rule has been reviewed under USDA procedures and Executive Order 12866 on Regulatory Planning and Review. The Office of Management and Budget (OMB) has determined that this is not a significant rule. This rule would not have an annual effect of $100 million or more on the economy, nor would it adversely affect productivity, competition, jobs, the environment, public health and safety, or State or local governments. This final rule would not interfere with an action taken or planned by another agency, nor raise new legal or policy issues. Finally, this final rule would not alter the budgetary impact of entitlement, grant, user fee, or loan programs or the rights and obligations of beneficiaries of such programs. Accordingly, this final rule is not subject to Office of Management and Budget (OMB) review under Executive Order (E.O.) 12866.

The Forest Service has considered this final rule in light of the Regulatory Flexibility Act (5 U.S.C. 602 et. seq.) and has determined that this rule would not have a significant economic impact on a substantial number of small entities as defined by the Act. This final rule would not have any effect on small entities, as it would simply set forth existing Forest Service process for the conduct of Stewardship End Result Contracting Projects which have generally been in place for more than 10 years. This rule would not impose record-keeping requirements on small entities; it would not affect their competitive position in relation to large entities; and it would not affect their cash flow, liquidity, or ability to remain in the market.

The Forest Service has analyzed this final rule in accordance with the principles and criteria contained in E.O. 12630 and determined that the rule would not pose the risk of taking private property.

The Forest Service has reviewed this final rule under E.O. 12988, Civil Justice Reform. Under this rule, (1) all State and local laws and regulations that conflict with this rule or that impede its full implementation would be preempted; (2) no retroactive effect would be given to this final rule; and (3) it would require administrative proceedings before parties may file suit in court challenging its provisions.

The Forest Service has considered this final rule under the requirements of E.O. 13132 on federalism and has determined that this rule conforms with the federalism principles in the E.O.; would not impose any compliance costs on the States; and would not have any substantial direct effects on the States, the relationship between the Federal Government and the States, or the distribution of power and responsibilities among the various levels of government. Moreover, this final rule does not have tribal implications as defined by E.O. 13175, Consultation and Coordination with Indian Tribal Governments, and therefore advance consultation with tribes is not required.

The Forest Service has reviewed this final rule under E.O. 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use”, and has determined that this rule would not constitute a significant energy action as defined in the E.O.

Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538), the Forest Service has assessed the effects of this final rule on State, local, and tribal governments and the private sector. This rule would not compel the expenditure of $100 million or more by any State, local, or tribal government or anyone in the private sector. Therefore, a statement under section 202 of the Act is not required.

This final rule does not contain any record-keeping or reporting requirements or other information collection requirements as defined in 5 CFR 1320 that are not already required by law or not already approved for use. Accordingly, the review provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et. seq.) and its implementing regulations at 5 CFR part 1320 do not apply.

Therefore, for the reasons stated in the preamble, the Forest Service amends 36 CFR part 223 as follows:

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2015-0373 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before March 22, 2016. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2015-0373, by one of the following methods:

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

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

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

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

In the Federal Register of August 26, 2015 (80 FR 51759) (FRL-9931-74), EPA issued a document pursuant to FFDCA section 408, 21 U.S.C. 346a, announcing the filing of a pesticide petition (PP IN-10786) by Dow AgroSciences, 9330 Zionville Rd., Indianapolis, IN 46268. The petition requested that 40 CFR 180.910 be amended by establishing an exemption from the requirement of a tolerance for residues of propanoic acid, 2-methyl-, monoester with 2,2,4-trimethyl-1,3-pentanediol (CAS Reg. No. 25265-77-4) when used as an inert ingredient as a solvent or co-solvent in pesticide formulations applied to growing crops or raw agricultural commodities after harvest. That document referenced a summary of the petition prepared by Dow AgroSciences, the petitioner, which is available in the docket, http://www.regulations.gov. There were no comments received in response to the notice of filing.

Inert ingredients are all ingredients that are not active ingredients as defined in 40 CFR 153.125 and include, but are not limited to, the following types of ingredients (except when they have a pesticidal efficacy of their own): Solvents such as alcohols and hydrocarbons; surfactants such as polyoxyethylene polymers and fatty acids; carriers such as clay and diatomaceous earth; thickeners such as carrageenan and modified cellulose; wetting, spreading, and dispersing agents; propellants in aerosol dispensers; microencapsulating agents; and emulsifiers. The term “inert” is not intended to imply nontoxicity; the ingredient may or may not be chemically active. Generally, EPA has exempted inert ingredients from the requirement of a tolerance based on the low toxicity of the individual inert ingredients.

Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”

EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be clearly demonstrated that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no appreciable risks to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a finite tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established.

Consistent with FFDCA section 408(c)(2)(A), and the factors specified in FFDCA section 408(c)(2)(B), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for propanoic acid, 2-methyl-, monoester with 2,2,4-trimethyl-1,3-pentanediol including exposure resulting from the exemption established by this action. EPA's assessment of exposures and risks associated with propanoic acid, 2-methyl-, monoester with 2,2,4-trimethyl-1,3-pentanediol follows.

EPA has evaluated the available toxicity data and considered their validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Specific information on the studies received and the nature of the adverse effects caused by propanoic acid, 2-methyl-, monoester with 2,2,4-trimethyl-1,3-pentanediol as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies are discussed in this unit.

Propanoic acid, 2-methyl-, monoester with 2,2,4-trimethyl-1,3-pentanediol has low acute toxicity with oral lethal dose (LD)50 values >3,200 milligram/kilogram (mg/kg), dermal LD50 values >14,000 mg/kg, and inhalation lethal concentration (LC)50 values >3.55 mg/liter (L) in rats, rabbits, and guinea pigs. In a 15-day oral gavage study in rats, the NOAEL was >1,000 mg/kg/day. In a combined repeat dose toxicity and developmental and reproductive toxicity screening test in rats, no reproductive or developmental toxicity was observed at doses up to 1,000 mg/kg body weight (bw)/day, the highest dose tested.

No chronic toxicity studies were available; however, the lack of systemic toxicity in two shorter repeat dose studies at the limit dose of 1,000 mg/kg bw/day indicates that chronic toxicity is not a concern.

Propanoic acid, 2-methyl-, monoester with 2,2,4-trimethyl-1,3-pentanediol was negative genotoxicity in the Ames assay and in vivo micronucleus assay.

No cancer study is available for propanoic acid, 2-methyl-, monoester with 2,2,4-trimethyl-1,3-pentanediol, however based on the lack of genotoxicity, no adverse effects seen in subchronic toxicity studies, and structure-activity relationship models (QSAR) modeling that did not indicate any triggers for carcinogenicity, propanoic acid, 2-methyl-, monoester with 2,2,4-trimethyl-1,3-pentanediol is not expected to be carcinogenic.

Propanoic acid, 2-methyl-, monoester with 2,2,4-trimethyl-1,3-pentanediol is a mixture of the 1-substituted (−65%) and the 3-substituted (−35%) monoisobutyrate isomers of 2,2,4-trimethyl-l,3-pentanediol. The half-life of the 1-substituted isomer in human and rat blood is between 15 to 22 minutes. No specific information is available on toxicity of propanoic acid, 2-methyl-, monoester with 2,2,4-trimethyl-1,3-pentanediol metabolites. However, propanoic acid, 2-methyl-, monoester with 2,2,4-trimethyl-1,3-pentanediol is rapidly metabolized in rat blood, and toxicity of parent propanoic acid, 2-methyl-, monoester with 2,2,4-trimethyl-1,3-pentanediol in rats was not observed at doses up to 1,000 mg/kg/day, so metabolite toxicity is anticipated to be low.

Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see http://www.epa.gov/pesticides/factsheets/riskassess.htm.

Since there is no indication of toxicity at the limit dose, a toxicological endpoint of concern for risk assessment purposes was not identified. Since no endpoint of concern was identified for the acute and chronic dietary exposure assessment and short and intermediate dermal and inhalation exposure, a quantitative risk assessment for propanoic acid, 2-methyl-, monoester with 2,2,4-trimethyl-1,3-pentanediol is not necessary.

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to propanoic acid, 2-methyl-, monoester with 2,2,4-trimethyl-1,3-pentanediol, EPA considered exposure under the proposed exemption from the requirement of a tolerance. EPA assessed dietary exposures from propanoic acid, 2-methyl-, monoester with 2,2,4-trimethyl-1,3-pentanediol in food as follows:

Dietary exposure can occur from eating foods containing residues of propanoic acid, 2-methyl-, monoester with 2,2,4-trimethyl-1,3-pentanediol. Because no hazard endpoint of concern was identified for the acute and chronic dietary assessment (food and drinking water), a quantitative dietary exposure risk assessment was not conducted.

2. Dietary exposure from drinking water. Propanoic acid, 2-methyl-, monoester with 2,2,4-trimethyl-1,3-pentanediol residues may be found in drinking water. However, since an endpoint of concern was not identified for the dietary assessment (food and drinking water), a quantitative dietary exposure risk assessment was not conducted.

3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., textiles (clothing and diapers), carpets, swimming pools, and hard surface disinfection on walls, floors, tables).

Propanoic acid, 2-methyl-, monoester with 2,2,4-trimethyl-1,3-pentanediol is used as an inert ingredient in pesticide products that could result in short- and intermediate-term residential exposure. However, based on the lack of toxicity, a quantitative exposure assessment from residential exposures was not performed.

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

EPA has not found propanoic acid, 2-methyl-, monoester with 2,2,4-trimethyl-1,3-pentanediol to share a common mechanism of toxicity with any other substances, and propanoic acid, 2-methyl-, monoester with 2,2,4-trimethyl-1,3-pentanediol does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that propanoic acid, 2-methyl-, monoester with 2,2,4-trimethyl-1,3-pentanediol does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at http://www.epa.gov/pesticides/cumulative.

Based on an assessment of propanoic acid, 2-methyl-, monoester with 2,2,4-trimethyl-1,3-pentanediol, EPA has concluded that there are no toxicological endpoints of concern for the U.S. population, including infants and children, and has determined that a qualitative assessment is appropriate. As part of its qualitative assessment, the Agency did not use safety factors for assessing risk, and no additional safety factor is needed for assessing risk to infants and children.

EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.

Based on the lack of any toxicological endpoints of concern, EPA concludes that there is a reasonable certainty that no harm will result to the general population or to infants and children from aggregate exposure to propanoic acid, 2-methyl-, monoester with 2,2,4-trimethyl-1,3-pentanediol residues.

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

Therefore, an exemption from the requirement of a tolerance is established under 40 CFR 180.910 for propanoic acid, 2-methyl-, monoester with 2,2,4-trimethyl-1,3-pentanediol (CAS Reg. No. 25265-77-4) when used as an inert ingredient (solvent or co-solvent) in pesticide formulations applied to growing crops or raw agricultural commodities after harvest.

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

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

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

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

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

Therefore, 40 CFR chapter I is amended as follows:

On May 19, 2015, the Court of Appeals for the District of Columbia (DC) Circuit issued a decision in District Hospital Partners, L.P. v. Burwell, 786 F.3d 46 (DC Cir 2015) (District Hospital Partners), holding that the FY 2004 outlier fixed-loss threshold was inadequately explained in the FY 2004 Inpatient Prospective Payment Systems (IPPS) final rule. The court of appeals instructed the district court to remand to the Secretary of Health and Human Services (the Secretary) for further explanation of the Secretary's handling of data pertaining to 123 hospitals that the Secretary had described in a proposed rule updating the outlier regulations (the outlier proposed rule) as hospitals likely to have manipulated their charges to maximize their outlier payments. The court of appeals specified—

District Hospital Partners, 786 F.3d at 60. The District Court for the District of Columbia, in turn, issued a remand order to the Secretary. (See District Hospital Partners, L.P. v. Burwell, No. 11-cv-116 (ECF 129) (August 13, 2015).)

On September 2, 2015, the District Court for the District of Columbia issued an opinion and order in a separate case, Banner Health v. Burwell, No. 10&cv-1638 (ECF 149 and 150) (Banner Health), remanding the fixed loss outlier threshold from the FY 2004 IPPS final rule for additional explanation consistent with the District Hospital Partners case. The court stated that the agency should “explain further why it did not exclude the 123 identified turbo-charging hospitals from the charge inflation calculation for FY 2004—or . . . recalculate the fixed loss threshold if necessary.” (Banner Health Memorandum Opinion (ECF 150) at p.107 and p.120.) We are issuing this document to provide the additional explanation required by these decisions.

The Medicare statute requires that outlier payments be calculated based on charges, adjusted to cost (see 42 U.S.C. 1395ww(d)(5)(A)(ii)). To compute an outlier payment, we use hospital-specific cost-to-charge ratios (CCRs), calculated from historical cost and charge data, to reduce the charge on the claim to a cost estimate. The estimated costs of the case are then compared to the Diagnosis Related Group (DRG) payment plus the fixed loss outlier threshold to determine if an outlier payment is appropriate and, if so, the amount of any such payment. Thus, CCRs play a significant role in determining the outlier payment for a case.

In the March 5, 2003, Federal Register (68 FR 10420), we issued a proposed rule (the outlier proposed rule) that would update the outlier regulations due to improper manipulation of charges by hospitals, also known as “turbocharging.” On June 9, 2003, we issued a subsequent final rule (68 FR 34494) that finalized changes to the outlier policy (the outlier final rule). In the FY 2004 IPPS final rule, which appeared in the August 1, 2003, Federal Register (68 FR 45346) (the FY 2004 IPPS final rule), we applied the policies finalized in the outlier final rule in the calculation of the FY 2004 fixed loss outlier threshold.

In the outlier proposed rule, we proposed multiple policy changes that affected outlier payments. These policies were finalized in the outlier final rule. The changes were intended to respond to turbocharging, a practice in which hospitals would repeatedly increase their charges at rates exceeding the rates of increase in their costs. Turbocharging would lead to outlier payments greater than warranted by a hospital's actual costs because the historical CCR used to generate cost estimates would not capture the true present relationship between the hospital's costs and its charges.

Three specific changes made in the outlier final rule are relevant to our present discussion. The first important change made in the outlier final rule was to alter our policy regarding when to apply statewide average CCRs. Prior to the outlier final rule, when a hospital's CCR dipped below a pre-determined CCR floor (set in the annual IPPS final rule), it would be assigned a statewide average CCR in place of the hospital's computed CCR. We noted that if a hospital repeatedly increased its charges at a faster rate than its costs increased, its CCR could fall below the floor, which would lead to the application of a higher statewide average CCR, and would significantly increase outlier payments. Therefore, in order to mitigate gaming of the application of the statewide average CCR, we finalized a policy that would no longer substitute statewide average CCRs if a hospital's actual CCR dipped below the floor. Hospitals would be assigned their actual CCRs no matter how low their CCR dipped.

The second key change to the outlier policy was to require use of CCRs from tentative settled Medicare cost reports when available. Previously, a hospital's outlier payments would be calculated based on a CCR drawn from its most recent final settled cost report, that is, its most recent cost report that had undergone complete review. We observed that if a hospital had significantly increased its charges since the period covered by its most recent final settled cost report, the hospital could receive inordinately high outlier payments because the CCR used to calculate its payments would not reflect its recent charge increases. Therefore, we modified the outlier policy to require use of more up-to-date CCR data drawn from a tentative settled cost report, when available. The tentative settlement is a cursory review of the cost report that takes place within 60 days of the acceptance of a cost report by CMS. We explained that we expected use of this more up-to-date data would reduce the time lag between a hospital's CCR and its current billed charges by a year or more. In our discussion of this policy change in the March 2003 outlier proposed rule, we described an analysis of the Medicare Provider Analysis and Review (MedPAR) file data from FY 1999 to FY 2001 in which we identified 123 hospitals whose percentage of outlier payments relative to total DRG payments increased by at least 5 percentage points over that period, and whose case-mix (the average DRG relative weight value for a hospital's Medicare cases) adjusted charges increased at a rate at or above the 95th percentile rate of charge increase for all hospitals (46.63 percent) over the same period. We noted at that time that the recent dramatic increases in charges for those hospitals were not reflected in their current CCRs (based on final settled cost reports).

The third key change made in the outlier final rule was to make outlier payments subject to adjustments when hospitals' cost reports are settled. We explained that outlier payments would be processed throughout the year using operating and capital CCRs based on the best information available at that time, but at the time a cost report was settled, outlier payments could be reconciled using updated CCRs that are computed from more recent cost report and charge data. We instructed our contractors to put a hospital through outlier reconciliation if it: 1) has a 10-percentage point change in its CCR from the time the claim was paid compared to the CCR at final cost report settlement; and 2) receives total outlier payments exceeding $500,000 during the cost reporting period.

Some of the provisions of the outlier final rule became effective for discharges occurring on or after August 8, 2003. The remaining provisions became effective for discharges occurring on or after October 1, 2003.

After these changes were finalized in the June 2003 outlier final rule, we then set the fixed loss outlier threshold for FY 2004 in the FY 2004 IPPS final rule (68 FR 45476 through 45478). When we calculated the fixed-loss threshold for FY 2004, we simulated payments by applying FY 2004 rates and policies to cases from the FY 2002 MedPAR file. The FY 2004 policies applied in the payment simulations included the policy changes that had been finalized in the June 2003 outlier final rule: 1) we attempted to approximate the use of tentative settled cost report data by calculating updated cost-to-charge ratios for each hospital from recent cost reporting data; and 2) we used a hospital's computed CCR even if it was very low, rather than substituting a statewide average CCR. We noted that it was difficult to project which hospitals would be subject to reconciliation of their outlier payments using then-available data. Nevertheless, we stated that our analysis at that time had identified approximately 50 hospitals that we thought would be subject to reconciliation. For those approximately 50 hospitals, we employed cost-to-charge ratios estimated from recent data using the hospital's rate of increase in charges per case based on FY 2002 charges, compared to costs (inflated to FY 2004 using actual market basket increases).

The court rulings discussed previously stated that we should explain why, in simulating FY 2004 payments to calculate the FY 2004 fixed loss outlier threshold, we made additional adjustments to the cost-to-charge ratios for approximately 50 hospitals, given that the March 2003 outlier proposed rule had discussed 123 hospitals that appeared to have benefited from vulnerabilities in the outlier payment rules. The reason is that the adjustments made to approximately 50 hospitals were intended to account for changes that might be made to hospitals' cost-to-charge ratios through reconciliation when their cost reports were settled. Those particular adjustments were not intended to account for possible disparities between hospitals' historical cost-to-charge ratios and the ratios that would be used to calculate FY 2004 outlier payments at the time the hospitals' claims were processed. We had separately accounted for disparities of that kind by computing new cost-to-charge ratios for all hospitals, including the 123 hospitals previously identified as possible turbochargers.

As discussed previously, our June 2003 outlier final rule was motivated by our observation that, because of turbocharging, the cost-to-charge ratios used to calculate a hospital's outlier payments sometimes failed to reflect the actual relationship between the hospital's costs and its charges at the time the hospital submitted a claim for payment. The June 2003 outlier final rule included separate measures that were each designed to address a different component of this problem. We adopted the use of more up to date cost-to-charge ratio data from tentative settled cost reports to ensure that the cost-to-charge ratio used to make a hospital's payments would come as close as possible to reflecting the present relationship between the hospital's costs and its charges. However, we recognized that while using data from tentative settled cost reports would reduce the time lag between cost-to-charge ratio data and outlier payment claims, it would not eliminate the time lag altogether. Data from a tentative settled cost report still would not reflect recent charge increases that had occurred since the submission of the cost report. Therefore, we separately provided for reconciliation of outlier payments at the time a cost report was settled. Thus, if a hospital received unduly high outlier payments because it had significantly increased its charges since the time of its most recent tentative settled cost report, there would be some opportunity to readjust those payments at a later date based on even newer data.

To simulate FY 2004 payments for purposes of calibrating the FY 2004 fixed loss outlier threshold, we needed to apply the rules that would be in place in FY 2004, and so we needed to simulate application of the new rules that had been adopted as part of the June 2003 outlier final rule. To approximate the use of more recent data from tentative settled cost reports, we calculated cost-to-charge ratios from more recent data for all hospitals, including the 123 hospitals discussed in the March 2003 proposed rule. Our most immediate purpose in this measure was to ensure that our simulated FY 2004 payments would match up as closely as possible with how FY 2004 claims would actually be paid. But this measure also had the additional benefit of reducing any reason for concern that cost-to-charge ratios drawn from older historical data for the 123 hospitals would not reliably approximate the cost-to-charge ratios that would be used to pay FY 2004 claims for those 123 hospitals. The payment simulations employed cost-to-charge ratios calculated from very recent data for all hospitals, including the 123 hospitals, and did not employ cost-to-charge ratios drawn from older historical data.

The additional adjustments made to approximately 50 hospitals were intended to simulate the operation of the newly adopted rule permitting some outlier payments to be adjusted through reconciliation after they were paid. Reconciliation of outlier payments is a burdensome process, and we had indicated that reconciliation would not be performed for all hospitals, or even all hospitals suspected of turbocharging in the past. Rather, reconciliation generally would be performed only if a hospital met the criteria we had specified for reconciliation: A 10-percentage point change in the hospital's CCR from the time the claim was paid compared to the CCR at cost report settlement; and receipt of total outlier payments exceeding $500,000 during the cost reporting period. We identified approximately 50 hospitals that we determined likely to meet these criteria in FY 2004, and we specially calculated cost-to-charge ratios for those hospitals as explained previously and in the FY 2004 IPPS final rule, so that our payment simulations would represent our best approximation of the final amount of outlier payments after reconciliation had been completed. We did not expect that all of the 123 hospitals discussed in the March 2003 proposed rule would be likely to meet the criteria for reconciliation, and so we did not make this same adjustment with respect to all of those 123 hospitals.

The court rulings also called for an explanation of other steps taken to account for any “distorting effect” associated with the 123 hospitals discussed in the March 2003 proposed rule. As we explained previously, our payment simulations employed cost-to-charge ratios calculated from recent data for all hospitals, including the 123 hospitals, and did not employ cost-to-charge ratios drawn from older historical data. That reduced any reason for concern that cost-to-charge ratios drawn from older historical data for the 123 hospitals would not reliably approximate the cost-to-charge ratios that would be used to pay FY 2004 claims for those 123 hospitals. We also anticipated that implementation of the June 2003 outlier final rule would curb the turbocharging practices that had caused rapid increases in charges in previous years; and therefore, we saw no reason to further adjust our payment simulations to account for future turbocharging by the 123 hospitals. Therefore, we did not apply any additional adjustments focused on the 123 hospitals that had been discussed in the March 2003 proposed rule, beyond the adjustments we have already discussed.

The court rulings also stated that we should explain further why we did not exclude the 123 identified turbo charging hospitals from the charge inflation calculation for FY 2004. We simply did not have strong reason to believe that excluding the 123 hospitals from the charge inflation calculation, or from other parts of the fixed loss outlier threshold calculation, would improve our projections.

When we simulate payments for purposes of calculating the fixed loss outlier threshold, we use MedPAR data from an earlier period to produce a simulated set of claims for the period for which we are calculating the fixed loss outlier threshold. For the FY 2004 final rule, we used cases from the FY 2002 MedPAR file to simulate FY 2004 cases. We applied a charge inflation factor to account for growth in hospital charges between the period covered by the MedPAR data and the period for which we are calculating the fixed loss outlier threshold. In this instance, the charge inflation factor was intended to account for growth in hospital charges over the 2-year period between FY 2002 and FY 2004. We estimated charge growth over this period based on actual charge growth over an earlier 2-year period, FY 2000 to FY 2002. More specifically, our estimate of charge inflation was based on the 2-year average annual rate of change in charges per case from FY 2000 to FY 2001 and from FY 2001 to FY 2002 (12.5978 percent annually, or 26.8 percent over 2 years).

Although we expected the June 2003 outlier final rule to curb turbocharging, which would affect the rate of charge growth after the rule became effective, we believed that past charge growth would still be a satisfactory basis for estimating more recent charge growth, for the 123 hospitals as well as for other hospitals. The outlier final rule was in effect for only part of the interval that our charge inflation estimate was intended to reflect. The outlier final rule went into effect only in part for the last 2 months of FY 2003, and went into effect in full only at the beginning of FY 2004.

We had no strong reason to expect that excluding the 123 hospitals from our charge inflation calculations, or from other parts of our simulations, would improve our simulations in a way that would bring outlier payments closer to our target of 5.1 percent of operating DRG payments. The 123 hospitals were not excluded from claiming outlier payments in FY 2004, so excluding them from our simulations would have introduced a different form of distortion into our simulations, by causing the simulations to disregard the impact of those hospitals. While excluding the 123 hospitals might produce a lower estimate of charge inflation, a lower estimate is not necessarily a better estimate. A charge inflation estimate that is too low could lead to a fixed loss outlier threshold that produces outlier payments farther from, instead of closer to, the target of 5.1 percent of operating DRG payments.

Finally, the court rulings state that if we decide to recalculate the FY 2004 fixed loss outlier threshold, we should also address any effect that recalculation has on the FY 2005 and FY 2006 outlier and fixed-loss thresholds. We are not recalculating the FY 2004 fixed-loss threshold. We also note that the fixed loss outlier thresholds are set based on new calculations each year without reference to the previous year's threshold; even if the FY 2004 threshold had been reset, there would be no reason to revisit the FY 2005 or FY 2006 calculation.

This document does not impose information collection requirements, that is, reporting, recordkeeping or third-party disclosure requirements. Consequently, there is no need for review by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

This document announces that, on January 14, 2016, OMB approved, on an emergency basis, a revision to an approved information collection to implement modified and new collection requirements on FCC Form 175, Application to Participate in an FCC Auction, and under 47 CFR 1.2105(a)(2), 1.2105(a)(2)(iii)-(vi), (a)(2)(viii)-(x), (a)(2)(xii), 1.2105(a)(3), 1.2105(c)(3), 1.2110(b)(1), 1.2112(b), and 1.2112(b)(1)(iii)-(vi), published at 80 FR 56764 on September 18, 2015. The OMB Control Number is 3060-0600. The Commission publishes this document as an announcement of the effective date of the rules and requirements. If you have any comments on the burden estimates listed below, or how the Commission can improve the collections and reduce any burdens caused thereby, please contact Cathy Williams, Federal Communications Commission, Room 1-C823, 445 12th Street SW., Washington, DC 20554. Please include the OMB Control Number, 3060-0600, in your correspondence. The Commission will also accept your comments via the Internet if you send them to [email protected].

To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to [email protected] or call the Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the Commission is notifying the public that it received emergency approval from OMB on January 14, 2016 for the revised information collection requirements contained in the information collection 3060-0600, Application to Participate in an FCC Auction.

Under 5 CFR part 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number.

No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number. The OMB Control Number is 3060-0600. The foregoing document is required by the Paperwork Reduction Act of 1995, Public Law 104-13, October 1, 1995, and 44 U.S.C. 3507.

The total annual reporting burdens and costs for the respondents are as follows:

OMB Control Number: 3060-0600.

OMB Approval Date: January 14, 2016.

OMB Expiration Date: July 31, 2016.

Title: Application to Participate in an FCC Auction.

Form No.: FCC Form 175.

Respondents: Business or other for-profit entities; Not-for-profit institutions; State, local or Tribal government.

Number of Respondents and Responses: 500 respondents; 500 responses.

Estimated Time per response: 90 minutes.

Frequency of Response: On-occasion reporting requirement.

Obligation to Respond: Required to obtain or retain benefits. The statutory authority for this information collection is contained in sections 154(i) and 309(j)(5) of the Communications Act of 1934, as amended, 47 U.S.C. 4(i), 309(j)(5), and sections 1.2105, 1.2110, 1.2112 of the Commission's rules, 47 CFR 1.2105, 1.2110, 1.2112.

Total Annual Burden: 750 hours.

Total Annual Cost: None.

Privacy Act Impact Assessment: No impact(s).

Nature and Extent of Confidentiality: Information collected on FCC Form 175 is made available for public inspection. To the extent that a respondent seeks to have certain information collected on FCC Form 175 withheld from public inspection, the respondent may request confidential treatment of such information pursuant to section 0.459 of the Commission's rules, 47 CFR 0.459.

Needs and Uses: In the Part 1 Report and Order, the Commission updated many of its Part 1 competitive bidding rules. The updated Part 1 rules apply to applicants seeking to participate in future non-reverse auctions for Commission licenses and permits, including the forward auction component of the Commission's upcoming television broadcast incentive auction (BIA). The revised information collection on FCC Form 175 implements the modified and new collection requirements contained in sections 1.2105(a)(2), 1.2105(a)(2)(iii)-(vi), (a)(2)(viii)-(x), (a)(2)(xii), 1.2105(a)(3), 1.2105(c)(3), 1.2110(b)(1), 1.2112(b), and 1.2112(b)(1)(iii)-(vi) of the Commission's rules, as adopted in the Part 1 Report and Order. The information collected on the revised FCC Form 175 will be used by the Commission to determine if an applicant is legally, technically, and financially qualified to participate in a non-reverse Commission auction for Commission licenses and permits, including the forward component of the BIA. Commission staff will review the information collected on FCC Form 175 for a particular auction as part of the pre-auction process, prior to the auction being held. Staff will determine whether each applicant satisfies the Commission's requirements to participate in the auction and, if an applicant claims status as a particular type of auction participant, whether that applicant is eligible for the status claimed. This approach provides an appropriate screen to ensure serious participation and deter possible abuse of the bidding process without being unduly burdensome.

The snapper-grouper fishery in the South Atlantic is managed under the FMP for the Snapper-Grouper Fishery of the South Atlantic Region (Snapper-Grouper FMP). The golden crab fishery in the South Atlantic is managed under the FMP for the Golden Crab Fishery of the South Atlantic Region (Golden Crab FMP). The dolphin and wahoo fishery in the Atlantic is managed under the FMP for the Dolphin and Wahoo Fishery of the Atlantic (Dolphin Wahoo FMP). The FMPs were prepared by the Council and implemented by NMFS through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

On July 15, 2015, NMFS published a notice of availability for the Generic AM Amendment in the Federal Register and requested public comment (80 FR 41472). On September 29, 2015, NMFS published a proposed rule for the Generic AM Amendment in the Federal Register and requested public comment (80 FR 58448). On October 14, 2015, NMFS approved this amendment. The notice of availability, proposed rule, and the Generic AM Amendment set forth additional rationale for the actions contained in this final rule. A summary of the actions implemented by this final rule is provided below.

This final rule revises the AMs for golden tilefish, snowy grouper, gag grouper (gag), red grouper, black grouper, scamp, the other shallow-water grouper complex (SASWG: Red hind, rock hind, yellowmouth grouper, yellowfin grouper, coney, and graysby), greater amberjack, the other jacks complex (lesser amberjack, almaco jack, and banded rudderfish), bar jack, yellowtail snapper, mutton snapper, the other snappers complex (cubera snapper, gray snapper, lane snapper, dog snapper, and mahogany snapper), gray triggerfish, wreckfish (recreational sector), Atlantic spadefish, hogfish, red porgy, the other porgies complex (jolthead porgy, knobbed porgy, whitebone porgy, scup, and saucereye porgy), and golden crab (commercial sector).

This final rule modifies the AMs for these species, including those identified in the species complexes, to make them consistent with the majority of the AMs already in place for other snapper-grouper species. Specifically, the final rule updates the recreational AMs to allow NMFS to close the applicable recreational sector when the recreational annual catch limit (ACL) is met or projected to be met, unless NMFS determines that no closure is necessary based on the best scientific information available. This final rule also modifies the AMs to trigger post-season ACL reductions in the commercial and recreational sectors in the year following any ACL overage under certain situations.

If the recreational sector exceeds its ACL, NMFS will monitor the recreational sector for a persistence in increased landings during the following fishing year. In the following fishing year, if the best scientific information available determines it necessary, NMFS will publish a notice in the Federal Register to reduce the length of fishing season and the recreational ACL by the amount of the recreational ACL overage if the species, or one or more species in a species complex, is overfished and if the total ACL (commercial ACL and recreational ACL) was exceeded in the prior fishing year.

If the commercial sector exceeds its ACL, NMFS will publish a notice in the Federal Register to reduce the commercial ACL in the following fishing year by the amount of the commercial ACL overage if the species, or one or more species in a species complex, is overfished and if the total ACL (commercial ACL and recreational ACL) was exceeded in the prior fishing year.

Modifying the AMs in this manner creates regulatory consistency among the majority of federally managed snapper-grouper species and golden crab in the South Atlantic region.

This final rule revises the commercial sector allocation to be 10 percent of the dolphin stock ACL with the ACL set at 1,534,485 lb (696,031 kg), round weight, and the recreational sector allocation for dolphin to be 90 percent of the stock ACL with the ACL set at 13,810,361 lb (6,264,274 kg), round weight. This change in sector allocations constitutes an equivalent ACL increase for the commercial sector and an ACL decrease for the recreational sector of 377,484 lb (171,224 kg), round weight.

In addition to the measures described in the Generic AM Amendment, this final rule clarifies the AM provisions in § 622.193 (the ACLs/AMs section of the regulations for South Atlantic snapper-grouper species) that will reduce a season length in the following recreational fishing year. These clarifications will aid law enforcement efforts. For those snapper-grouper species that have a post-season AM if a recreational ACL is exceeded, under certain conditions NMFS will reduce the season length (i.e., implement a closure) for that species or species complex in the following fishing year by publishing an AM notification and closure date for the recreational sector for that species or species complex in the Federal Register. In this final rule, NMFS adds a closure provision to the regulations for these situations. Specifically, the provision states that when the closure becomes effective, the bag and possession limits for the applicable species or species complex in or from the U.S. exclusive economic zone (EEZ) in the South Atlantic will be reduced to zero.

In addition, this final rule removes and consolidates language in § 622.190(a)(6) for the red porgy commercial quota from past fishing years that is no longer applicable.

Finally, this final rule fixes an error in § 622.280 for Atlantic dolphin and wahoo. Atlantic dolphin and wahoo are managed off the Atlantic states (Maine through the east coast of Florida) via the Dolphin Wahoo FMP; however, in the AMs section of the codified text, the closure provisions currently apply in the South Atlantic EEZ only. This inadvertent error was implemented in the rulemaking for the Comprehensive ACL Amendment (77 FR 15916, March 16, 2011). This final rule changes “South Atlantic EEZ” to “Atlantic EEZ” in the AMs for dolphin and wahoo in paragraphs (a)(1)(i) and (b)(1)(i) of § 622.280, which is consistent with the FMP for management of these species from Maine through the east coast of Florida.

NMFS received comments from individuals, fishing associations, a marine resource conservation group, a seafood dealer, and a municipal chamber of commerce on the notice of availability and the proposed rule for the Generic AM Amendment, along with other issues. NMFS received comments that were beyond the scope of the notice of availability and proposed rule, and therefore, they have not been addressed in this final rule. The 19 unique comments that relate to one or more of the management actions in the Generic AM Amendment and the proposed rule are summarized and responded to below.

Comment 1: One commenter agreed that the commercial sector allocation for Atlantic dolphin (dolphin) should be increased, but suggested that the methods used to calculate the allocation changes need to be revisited. Another commenter suggested that the Council should select a different alternative that allocates 86 percent of the total ACL to the recreational sector and 14 percent to the commercial sector.

Response: The Council did choose a different method than they used previously to determine the sector allocations for dolphin in the Generic AM Amendment and final rule. In this amendment, the Council used more recent commercial and recreational landings from 2008 through 2012, which results in changing the allocation for the commercial sector from 7.54 percent to 10 percent and changing the allocation for the recreational sector from 92.46 percent to 90 percent. This revised allocation results in an increase in the commercial ACL from 1,157,001 lb (524,807 kg), round weight, to 1,534,485 lb (696,031 kg), round weight. The Council determined that the revised allocation reduces the potential for exceeding the commercial ACL, since the increase shows that the dolphin commercial ACL would not have been exceeded during the 2008 through 2014 fishing years. Additionally, as discussed below, the recreational sector has landed approximately 50 percent of their ACL during most of this time period. The Council determined that this change in allocation between the commercial and recreational sectors, and not the alternative that would allocate 14 percent of the total ACL to the commercial sector and 86 percent to the recreational sector, was the best management strategy to meet the objectives of the Generic AM Amendment and the Dolphin Wahoo FMP, while complying with the requirements of the Magnuson-Stevens Act and other applicable laws. If the Council decides that another allocation adjustment is required in the future, they may choose to consider allocation options in a future amendment.

Comment 2: A commenter opposed the shift in the allocation from the recreational sector to the commercial sector, because when other commercial fisheries close, there will be increased commercial effort directed toward dolphin resulting in an increase in commercial harvest, causing overfishing of the stock.

Response: NMFS disagrees that the Council should not change the commercial and recreational allocations for dolphin, or that this allocation shift will cause overfishing of dolphin. From 2008 through 2013, the latest complete 5-year data period available when the Council considered the actions in the amendment and in this final rule, the recreational sector landed approximately 50 percent of their ACL each year. In 2014, the recreational sector landed approximately 37 percent of their ACL, and 39 percent of the recreational ACL was landed through August 2015 (the latest data available as of December 7, 2015). However, the commercial sector met their ACL in both 2014 and 2015. The Council's decision to increase the commercial allocation for dolphin from 7.54 percent to 10 percent reduces the potential for the commercial sector to exceed its ACL. Sector-specific AMs are in place to limit harvest to the respective sector ACL, which will help to prevent overfishing of dolphin. Additionally, based on their life history, dolphin is not as susceptible to overfishing because it is a short-lived species that is also highly productive.

Comment 3: A commenter opposed the amendment as inconsistent with National Standard 1 under the Magnuson-Stevens Act, because allocating more of the total ACL to the commercial sector would allow dolphin fishers to better achieve optimum yield (OY) for the stock.

Response: NMFS disagrees that the Generic AM Amendment is inconsistent with National Standard 1. National Standard 1 states that management and conservation measures shall prevent overfishing while achieving, on a continuing basis, the OY from a fishery. The Magnuson-Stevens Act defines “optimum,” with respect to the yield from a fishery, in part, as the amount of fish that will provide the greatest overall benefit to the Nation, particularly with respect to food production and recreational opportunities and taking into account the protection of marine ecosystems. The Council determined that the increase in allocation from 7.54 percent to 10 percent for the commercial sector helped best meet the definition of OY for the dolphin fishery, and is the best management strategy to meet the objectives of the Generic AM Amendment and the Dolphin Wahoo FMP.

Comment 4: A commenter opposed the amendment as inconsistent with National Standard 2 under the Magnuson-Stevens Act, because the sector allocations are based on flawed estimates of recreational landings derived from the Marine Recreational Fisheries Statistics Survey (MRFSS).

Response: NMFS disagrees. The recreational sector allocations and ACLs for dolphin and wahoo were established in the Comprehensive ACL Amendment (77 FR 15916, March 16, 2012), using data generated by MRFSS, which was the best scientific information available at that time. In 2013, following an independent review by the National Research Council and as directed by Congress within the Magnuson-Stevens Act, NMFS replaced MRFSS with the Marine Recreational Information Program (MRIP) to provide more accurate recreational catch estimates. MRIP is expected to reduce potential bias and increase the accuracy, timeliness, and spatial resolution of recreational catch and effort estimates. Amendment 5 to the Dolphin Wahoo FMP (79 FR 32878, June 9, 2014) revised the ACLs using recreational data from MRIP. The ACLs in the Generic AM Amendment utilize MRIP data, which is now the best scientific information available. Furthermore, the Council chose to revise the allocations for dolphin based on data from a more recent time period, and the sector allocations are not based on flawed estimates of recreational landings. NMFS has determined that the actions in this amendment are based upon the best scientific information available, in accordance with National Standard 2.

Comment 5: A commenter opposed the amendment as inconsistent with National Standard 3 under the Magnuson-Stevens Act, because the stock structure of dolphin indicates a great deal of mixing, with harvest by fishermen from many other nations.

Response: NMFS disagrees that the amendment is inconsistent with National Standard 3. National Standard 3 states that to the extent practicable, an individual stock of fish shall be managed as a unit throughout its range. Furthermore, fishery management plans should include conservation and management measures for that part of the management unit within U.S. waters, as per the National Standard 3 Guidelines. Although dolphin occur in tropical and subtropical waters worldwide, it is generally accepted that there is a single dolphin stock in the western central Atlantic, from Nova Scotia to Brazil and throughout the Gulf of Mexico and Caribbean Sea. Samples of dolphin harvested throughout this area indicate no substantial genetic differences, and tagging information shows that dolphin move within this range. While dolphin may be genetically similar in the Gulf of Mexico, Caribbean, and South Atlantic, the Dolphin Wahoo FMP only addresses dolphin that occur in the Atlantic, as per the National Standard 3 Guidelines that allow for the dolphin management unit to be defined by a geographic area. Accordingly, the original Dolphin Wahoo FMP specified one management unit in the Atlantic ranging from New England to the U.S. South Atlantic for comprehensive management and protection.

Comment 6: A commenter opposed the amendment as inconsistent with National Standard 4 under the Magnuson-Stevens Act, because U.S. fishermen in the Gulf of Mexico are not restricted from access to dolphin. The commenter also questioned the use of J-style hooks instead of circle hooks on pelagic longline gear that harvests dolphin, and suggested restricting dolphin permits for those fishers using pelagic longline gear. The commenter also asked whether fishermen with commercial permits for dolphin and wahoo who use pelagic longline gear have to file logbook reports and carry observers, and whether they may retain highly migratory species (HMS).

Response: NMFS disagrees that the Generic AM Amendment is inconsistent with National Standard 4. National Standard 4 states, in part, that conservation and management measures in a fishery management plan shall not discriminate between residents of different states. The actions in the Generic AM Amendment are applicable to all residents of each of the states affected by the Dolphin Wahoo FMP. Dolphin in the Gulf of Mexico are not subject to management through the Dolphin Wahoo FMP.

Fishermen with Federal commercial vessel permits for dolphin and wahoo may not retain HMS species without the relevant Federal HMS permit. Fishing for dolphin with J-hooks is allowed under the Dolphin Wahoo FMP, and the use of circle hooks was not considered in the Generic AM Amendment, although the Council could consider measures in a future amendment to require the use of circle hooks. At this time, fishermen with Federal commercial vessel permits for dolphin and wahoo are not required to carry observers under the Dolphin Wahoo FMP, but they are required to complete logbooks for retained and discarded catch and report that information to NMFS. Additionally, at this time, the Council has not chosen to further restrict the number of commercial vessel permit holders who may fish for dolphin using pelagic longline gear.

Comment 7: A commenter opposed the amendment as inconsistent with National Standard 5 under the Magnuson-Stevens Act, because it will not promote efficiency to set a commercial limit that is unnecessarily low for dolphin.

Response: NMFS disagrees that the amendment is inconsistent with National Standard 5. National Standard 5 states that conservation and management measures shall, where practicable, consider efficiency in the utilization of fishery resources; except that no such measure shall have economic allocation as its sole purpose. The Council considered efficiency in its decision to increase the commercial allocation for dolphin from 7.54 percent to 10 percent of the total ACL, and the commercial ACL from 1,157,001 lb (524,807 kg), round weight, to 1,534,485 lb (696,031 kg), round weight. The Council determined that the revised allocation and commercial ACL was more efficient in that it is expected to reduce the potential for the commercial sector to exceed its ACL.

Comment 8: A commenter opposed the amendment as inconsistent with National Standard 6 under the Magnuson-Stevens Act, because the sector reallocations are based on a short recent time frame that does not adequately take into account the cyclical nature of highly migratory species fisheries.

Response: NMFS disagrees that the amendment is inconsistent with National Standard 6. The Magnuson-Stevens Act does not define dolphin as a highly migratory species. National Standard 6 states that conservation and management measures shall take into account and allow for variations among, and contingencies in, fisheries, fishery resources, and catches. The Council did consider the variation in dolphin catches over a long time period (from 1999 through 2012) when choosing their preferred alternative for an allocation formula. In this amendment, the Council chose to use more recent commercial and recreational landings data from 2008 through 2012, rather than the landings data from 1999 through 2008 that the Council previously used. This change in the allocation formula results in changing the allocation for the commercial sector from 7.54 percent to 10 percent and changing the allocation for the recreational sector from 92.46 percent to 90 percent. The Council determined that the revised allocation takes into account the variations in the fishery, and reduces the potential for the commercial sector to exceed its ACL while meeting the objectives of the FMP.

Comment 9: A commenter opposed the amendment as inconsistent with National Standard 7 under the Magnuson-Stevens Act, because dolphin should be managed under the Highly Migratory Species Division of NMFS, which would minimize costs, allow participants better opportunity to participate in the management process, avoid duplication by several interested Councils, and most importantly, lead the way for truly effective international management for these highly migratory fish harvested by many international fishermen.

Response: NMFS disagrees that the amendment is inconsistent with National Standard 7. The Magnuson-Stevens Act's definition of “highly migratory species” explicitly lists which species are to be included, and Congress did not include dolphin in the definition (16 U.S.C. 1802(21)). In 2004, the Council, in cooperation with the Mid-Atlantic and New England Councils, and with the approval of the Secretary of Commerce, developed the Dolphin Wahoo FMP for the Atlantic and manage those species under this FMP.

Comment 10: A commenter opposed the amendment as inconsistent with National Standard 8 under the Magnuson-Stevens Act, because the sector reallocation measure for dolphin is likely to have significant adverse impacts on commercial fishermen and the communities that rely on them, and the healthy condition of dolphin does not warrant this action at this time.

Response: NMFS disagrees that the amendment is likely to have significant adverse impacts on commercial fishermen and communities, and has determined that the amendment is consistent with National Standard 8. The preferred alternative in the Generic AM Amendment is expected to have positive economic and social impacts for commercial fishermen and the communities that rely on them, as it will increase the commercial allocation from 7.54 percent to 10 percent of the total ACL and increase in the commercial ACL from 1,157,001 lb (524,807 kg), round weight, to 1,534,485 lb (696,031 kg), round weight.

Comment 11: A commenter opposed the amendment as inconsistent with National Standard 9 under the Magnuson-Stevens Act, because the sector reallocation for dolphin should contain allocation for commercial fishermen at a level that is highly unlikely to lead to the regulatory discarding of dolphin.

Response: NMFS disagrees. National Standard 9 states, in part, that management measures shall minimize bycatch to the extent practicable. The increase in commercial allocation from 7.54 percent to 10 percent of the total ACL and increase in the commercial ACL from 1,157,001 lb (524,807 kg), round weight, to 1,534,485 lb (696,031 kg), round weight, is expected to decrease the chance that a commercial closure will occur. With a longer commercial fishing season, fewer regulatory discards would be expected. The Council determined that the revised allocation will reduce the potential for the commercial sector to exceed its ACL, since this increase shows that the dolphin commercial ACL would not have been exceeded during the 2008 through 2014 fishing years.

Comment 12: A commenter opposed the amendment as inconsistent with National Standard 10 under the Magnuson-Stevens Act, because commercial fishermen will be forced to discard perfectly saleable fish if the fishery closes and will have to fish longer trips when the fishery is open to attempt to make up those losses.

Response: NMFS disagrees. National Standard 10 is intended to promote the safety of human life at sea to the maximum extent practicable, and that is what this amendment does. The Generic AM Amendment will increase the sector allocation and ACL for the commercial sector, so that the chance that a commercial closure will occur and that fishermen will have to make up for the lost opportunity to harvest dolphin by taking longer trips will be reduced.

Comment 13: One commenter asked why the recreational sector ACL is larger than the commercial ACL.

Response: The recreational ACL is larger than the commercial ACL because the allocations in the Dolphin Wahoo FMP are based on historical landings by commercial and recreational fishermen, and the recreational landings have historically greatly exceeded the commercial landings. In 2012, the Council established sector allocations for Atlantic dolphin through the final rule to implement the Comprehensive ACL Amendment (77 FR 15916, March 16, 2012). At that time, the Council determined the allocation for the sectors to be 7.54 percent for the commercial sector and 92.46 percent for the recreational sector, based on a methodology that used 50 percent of proportional commercial to recreational landings from 1999 through 2008 and 50 percent of proportional commercial to recreational landings from 2006 through 2008. In the Generic AM Amendment, the Council changed the sector allocations of the total dolphin ACL to 10 percent commercial and 90 percent recreational based on a revised methodology that used the more recent commercial and recreational landings data from 2008 through 2012.

Comment 14: A commenter asked about the methods used to gather dolphin recreational catch data, since recreational fishers do not use trip tickets or logbooks like the commercial sector.

Response: Recreational landings for dolphin in the Atlantic are collected through MRIP and the Southeast Region Headboat Survey (SRHS). With respect to dolphin, MRIP covers coastal Atlantic states from Maine to Florida. MRIP provides estimated landings and discards for six 2-month periods (waves) each year. The survey provides estimates for three recreational fishing modes: Shore-based fishing, private and rental boat fishing, and for-hire charter and guide fishing. Catch data are collected through dockside angler intercept surveys of completed recreational fishing trips, and effort data are collected using telephone surveys. The SRHS estimates landings and discards for headboats in the U.S. South Atlantic and Gulf of Mexico from required electronic logbooks. Landings data from MRIP and SRHS are compared to the respective recreational ACL. If the ACL has been met or exceeded, an AM is triggered, such as an in-season closure. If landings for either MRIP or SRHS are incomplete, projections of landings based on information from previous years are used to predict when the recreational ACL is expected to be met. Additional information of both commercial and recreational landings for dolphin can be found on the NMFS Southeast Regional ACL monitoring Web page at: http://sero.nmfs.noaa.gov/sustainable_fisheries/acl_monitoring/index.html.

Comment 15: One commenter stated that the revised reallocation will reduce both large dolphin and the numbers of fish preferred by recreational fishermen, and that the correct age class and stock size of dolphin should be managed to a goal of maximum economic yield, rather than maximum sustainable yield.

Response: The Magnuson-Stevens Act establishes maximum sustainable yield as the basis for fishery management, not maximum economic yield. Harvest by either the commercial or recreational sector could affect the age class distribution as well as the stock size. This reallocation will allow the commercial sector to harvest a small portion of a relatively large amount of fish left unharvested by the recreational sector, and sector-specific ACLs and AMs have been established to control the adverse biological impacts of the harvests on the dolphin stock and maintain stock size at a sustainable level. Thus, it is expected that the reallocation being implemented through this final rule will have no negative effects on the health of the dolphin stock.

Comment 16: A commenter stated that the proposed allocation shows a lack of fairness and transparency in the Council process, and that NMFS and the Council should follow their own scientific guidance when revising allocations.

Response: The Magnuson-Stevens Act requires fishery management councils to make their management decisions through a very public process. The Council has an open decision-making process, and the public is afforded ample opportunity to comment and participate on topics being considered. This process includes review and advice from the Council's Scientific and Statistical Committee (SSC) and advisory panels. Each meeting in which the Council, the SSC, or the Council's advisory panels discussed the Generic AM Amendment was noticed in the Federal Register and also publicized by the Council, and each meeting was open to the public and had public comment periods available. The Council also held public scoping meetings and public hearings on the actions contained in this amendment. The notice of availability for the Generic AM Amendment had a 60-day public comment period (80 FR 41472, July 15, 2015). The public also had a 30-day opportunity to comment on the proposed rule (80 FR 58448, September 29, 2015). Additionally, NMFS has determined that the actions in this amendment are based upon the best scientific information available.

Comment 17: A commenter opposed the amendment because the reallocation would continue an unfair scenario facing the recreational sector, in which AMs are imposed if the recreational ACL is exceeded, and yet the allowable recreational catch is reallocated if the recreational quota is not achieved.

Response: NMFS disagrees. The reallocation for the commercial sector from 7.54 percent to 10 percent and for the recreational sector from 92.46 percent to 90 percent of the total dolphin ACL does not represent an unfair scenario facing the recreational sector. The Council determined that the revised allocation reduces the potential for exceeding the commercial ACL, since the increase shows that the dolphin commercial ACL would not have been exceeded during the 2008 through 2014 fishing years. Additionally, the recreational sector has landed approximately 50 percent of their ACL during most of this time period.

Comment 18: A commenter opposed the amendment, stating that the economic analysis is not based on best scientific information available, because it ignores any value that recreational fishers might hold for the value of taking a dolphin trip without any harvest and the economic value recreational fishers hold for more robust stocks and larger fish. The commenter was concerned that the change in allocation and higher commercial harvest will result in reduced economic benefits to recreational fishers and the public.

Response: NMFS disagrees. The Generic AM Amendment, including its economic analysis, is based on the best scientific information available, and it includes available information on recreational economic values for dolphin, such as values per fish kept, with higher values attached to larger fish; values per dolphin fish, per trip, and values per dolphin fish caught and released.

Studies that consider the economic efficiency of allocating dolphin between the commercial and recreational sectors are not currently available. The absence of such studies precludes the determination of the economic efficiency gains and losses to the commercial or recreational sector, and net gains or losses to the public as a whole, from each of the allocation alternatives within the Generic AM Amendment. The economic analysis notes that, with the recreational sector's harvest being well below its allocation, decreasing the recreational allocation by 2.46 percentage points (with an equivalent increase to the commercial allocation) would have no adverse economic impacts on the recreational sector.

Comment 19: A commenter opposed the amendment, stating that commercial trip limits should be adopted to prevent the development of a directed commercial dolphin fishery, especially the longline segment, which would happen if the allocation shifts sufficiently to the commercial sector. A directed commercial dolphin fishery raises the possibility of localized depletion of dolphin, thereby affecting recreational fishing success.

Response: There is currently a trip limit of 200 lb (91 kg) of dolphin and wahoo, combined, for a vessel that does not have a Federal commercial vessel permit for dolphin and wahoo but has a Federal commercial vessel permit in any other fishery, provided that all fishing on and landings from that trip are north of 39° North latitude (50 CFR 622.278(a)(2)). The Council did not consider any other commercial trip limits in the Generic AM Amendment, but they are developing an amendment to consider commercial trip limits specifically for dolphin (Dolphin Wahoo Regulatory Amendment 1). A review of dolphin and wahoo Federal commercial permits from 2008 through 2012 shows that Federal commercial permit holders predominantly used hook-and-line gear and trolling gear to harvest dolphin, and not longline gear.

Because the commercial ACL is increasing, there is a chance the small portion of the fishery that uses longlines may increase or those that already use that gear type may increase their fishing effort. Since longline gear have the potential to catch a large number of dolphin at one time, an increase in longline effort could result in temporary localized depletion. However, NMFS does not expect localized depletion of dolphin since only a small subset of Federal dolphin wahoo commercial permit holders (11 vessels) use pelagic longlines to harvest dolphin and, given the small increase in the commercial allocation being implemented in this amendment, it is unlikely that longlining effort for dolphin would substantially increase or significantly expand.

Both the commercial and recreational sectors for dolphin are limited to their respective ACLs and the AMs that are in place. The current system of AMs is designed to prevent the ACLs from being exceeded, and to correct for any ACL overages if they occur.

The Regional Administrator, Southeast Region, NMFS has determined that this final rule is consistent with the Generic AM Amendment, the FMPs, the Magnuson-Stevens Act, and other applicable laws.

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

The Magnuson-Stevens Act provides the statutory basis for this rule.

In compliance with section 604 of the RFA, NMFS prepared a Final Regulatory Flexibility Analysis (FRFA) for this final rule. The FRFA incorporates the Initial Regulatory Flexibility Analysis (IRFA), a summary of the significant economic issues raised by public comment, NMFS' responses to those comments, and a summary of the analyses completed to support the action. The FRFA follows.

A statement of the need for, and objectives of, the rule. The actions are intended to make the AMs consistent for snapper-grouper species addressed in the final rule and for golden crab, and revise the allocations between the commercial and recreational sectors for dolphin.

A statement of significant issues raised by the public comments in response to the Initial Regulatory Flexibility Analysis. No public comments specific to the IRFA were received, and therefore, no public comments are addressed in this FRFA. Certain comments with general socio-economic implications are addressed in the comments and responses section. No changes in the final rule were made in response to public comments.

Response to comments filed by the Chief Counsel for the Advocacy of the Small Business Administration to the Initial Regulatory Flexibility Analysis. No comments were received from the Chief Counsel for the Advocacy of the Small Business Administration to the Initial Regulatory Flexibility Analysis and, thus, no changes to the rule were made in response to such comments.

A description of affected small entities. NMFS expects this final rule to directly affect federally permitted commercial fishermen harvesting snapper-grouper species or golden crab in the South Atlantic.

NMFS also expects this final rule to directly affect federally permitted commercial fishermen harvesting dolphin in the South Atlantic and off states north of North Carolina (northeastern states).

Charter vessels and headboats (for-hire vessels) sell fishing services, which include the harvest of any species considered in this final rule, to recreational anglers. These vessels provide a platform for the opportunity to fish and not a guarantee to catch or harvest any species, though expectations of successful fishing, however defined, likely factor into the decision to purchase these services. Any change in demand for these fishing services and associated economic affects as a result of regulatory changes will be a consequence of behavioral change by anglers, secondary to any direct effect on anglers and, therefore, an indirect effect of the regulatory action. Because the effects on for-hire vessels will be indirect, they fall outside the scope of the RFA. Recreational anglers, who may be directly affected by the changes in this final rule, are not small entities under the RFA.

To serve as a benchmark for determining whether a business entity is a small entity, the Small Business Administration (SBA) established size criteria for all major industry sectors in the U.S., including fish harvesters and for-hire operations. A business involved in fish harvesting is classified as a small business if independently owned and operated, is not dominant in its field of operation (including its affiliates), and its combined annual receipts are not in excess of $20.5 million (NAICS code 114111, finfish fishing) for all of its affiliated operations worldwide.

The snapper-grouper fishery is a multi-species fishery and vessels generally land many species on the same trips. Vessels in the dolphin fishery also catch other species jointly with dolphin. The golden crab fishery is more specialized than either the snapper-grouper or dolphin fishery, and there is a comparatively lower proportion of bycatch; as a result, the target species, golden crab, dominates the total catch during a trip.

Because of the possibility that some vessels land only species not affected by this final rule, the following provides a description of vessels and their revenues by focusing on the key species (black grouper, mutton snapper, yellowtail snapper, greater amberjack, red porgy, gag, golden tilefish, red grouper, snowy grouper, wreckfish, golden crab, and dolphin) addressed in this final rule. These species provide higher landings and revenues than the other affected species, such that focusing on them should provide enough information to determine if certain small entities (i.e., vessels) meet the SBA threshold for small entities. Hogfish, a recently assessed species, is not included as a key species for this analysis as it is being addressed by the Council in Amendment 37 to the Snapper-Grouper FMP. However, revenue approximations for vessels landing hogfish are noted below. The number of vessels and revenues (2013 dollars) are annual averages for the period 2009 through 2013, unless otherwise noted. Data for the years 2009 through 2013 were the latest complete 5-year data available when the Council considered the actions in this rule.

Approximately 188 vessels landing at least 1 lb (0.45 kg) of black grouper generated approximately $54,000 in revenues from black grouper and other species; 266 vessels landing at least 1 lb (0.45 kg) of mutton snapper had revenues of approximately $51,000 from mutton snapper and other species; 252 vessels landing at least 1 lb (0.45 kg) yellowtail snapper had revenues of approximately $38,000 from yellowtail snapper and other species; 295 vessels landing at least 1 lb (0.45 kg) of greater amberjack had revenues of approximately $53,000 from greater amberjack and other species; 191 vessels landing at least 1 lb (0.45 kg) of red porgy had revenues of approximately $60,000 from red porgy and other species; 273 vessels landing at least 1 lb (0.45 kg) of gag had revenues of approximately $49,000 from gag and other species; 63 vessels landing at least 1 lb (0.45 kg) of golden tilefish had revenues of approximately $68,000 from golden tilefish and other species; 278 vessels landing at least 1 lb (0.45 kg) of red grouper had revenues of approximately $50,000 from red grouper and other species; 138 vessels landing at least 1 lb (0.45 kg) of snowy grouper had revenues of approximately $78,000 from snowy grouper and other species; and 488 vessels landing at least 1 lb (0.45 kg) of dolphin had revenues of approximately $64,000 from dolphin and other species. Revenues for vessels landing at least 1 lb (0.45 kg) of wreckfish or golden crab can be approximated based on total revenues from landings of those species and the number of permits. As of August 6, 2015, there were 5 Federal wreckfish commercial permits and 11 Federal golden crab commercial permits. For fishing years 2009/2010 through 2013/2014, annual revenues from wreckfish landings averaged $752,881, implying average annual revenue per wreckfish vessel of approximately $188,000. From 2009 through 2013, annual revenues from golden crab landings averaged $1,419,843, implying average annual revenue per golden crab vessel of approximately $142,000. Most of the unassessed snapper-grouper species (almaco jack, banded rudderfish, lesser amberjack, gray snapper, lane snapper, cubera snapper, dog snapper, mahogany snapper, white grunt, sailors choice, tomtate, margate, red hind, rock hind, yellowmouth grouper, yellowfin grouper, coney, graysby, jolthead porgy, knobbed porgy, saucereye porgy, scup, whitebone porgy, Atlantic spadefish, bar jack, scamp, and gray triggerfish), and hogfish had lower dockside revenues than many of the key species. In fact, the highest dockside values of an unassessed species (scamp) were much lower than those of at least one assessed species (yellowtail snapper). Therefore, NMFS expects that revenues of vessels landing at least one lb (0.45 kg) of an unassessed species or hogfish will fall within the range of vessel revenues described above.

Some vessels, other than those in the golden crab fishery, may have caught and landed a combination of the 12 key species, hogfish, and unassessed snapper-grouper species, and revenues therefrom are included in the foregoing estimates.

Vessels that caught and landed any of the species addressed in this final rule may also operate in other fisheries, the revenues of which are not known due to lack of information and are not reflected in these totals.

Based on the revenue information provided above, all commercial vessels expected to be affected by this final rule are assumed to be small entities.

Because all entities expected to be affected by this final rule are assumed to be small entities, NMFS has determined that this rule will affect a substantial number of small entities. However, the issue of disproportionate effects on small versus large entities does not arise in the present case.

Designating a species to be overfished presupposes a stock assessment has been completed, implying that the ACL payback action, i.e., a reduction in the following year's catch limit or quota by the amount of an ACL overage, in this final rule will not apply to any unassessed snapper-grouper species. Therefore, the harvest of unassessed snapper-grouper species and associated economic benefits will remain unaffected by this final rule. NMFS notes that a stock assessment underway for gray triggerfish, an unassessed species, is expected to be completed in 2016. Of the assessed snapper-grouper species subject to the AM action in this final rule, only red porgy and snowy grouper are considered overfished. The recent stock assessment for hogfish defined three separate stocks, one of which is considered overfished and undergoing overfishing (SEDAR 37 2014). Amendment 37 to the Snapper-Grouper FMP, currently under development by the Council, will address issues specifically related to hogfish. Since 2009, the commercial sector exceeded its ACL for red porgy in 2011 and 2013 by less than 3 percent each year. On the other hand, recreational landings of red porgy have been well below the sector's ACL. Recreational landings of red porgy were 51 percent in 2012 and 48 percent in 2013 of the red porgy recreational ACL. Based on past and recent landings history, it is unlikely that the total red porgy ACL (sum of commercial and recreational sector ACLs) will be reached in the near future, so the payback action in this final rule will not be expected to affect harvesters of red porgy in the short term. The case with snowy grouper is slightly different from the other overfished snapper-grouper species. The snowy grouper commercial ACL was exceeded by less than 10 percent in 2012, 2013, and 2014, while the recreational ACL was exceeded by more than 200 percent in 2012 and 2013. For the 2014 fishing season, recreational harvest of snowy grouper was closed on June 7, 2014, because NMFS projected the recreational ACL would be met.

Based on landings history, it is likely that the payback action for snowy grouper in this final rule will adversely affect the profits of commercial vessels. The amount of payback for any ACL overages and resulting profit loss to the commercial vessels cannot be estimated due to lack of information. However, current Federal regulations enable NMFS to implement a snowy grouper in-season closure for the commercial sector and in-season monitoring and possible closure for the recreational sector if the respective sector's ACL is reached or projected to be reached. In addition, this final rule will implement an in-season closure for the snowy grouper recreational sector once the recreational ACL is reached or is projected to be reached.

These current measures and this final rule are expected to limit the amount of any ACL overage, meaning that the resulting loss in profits to commercial vessels due to the ACL payback provision should be small.

The commercial and recreational sector re-allocation of the ACL for dolphin will increase the ACL share of the commercial sector at the expense of the recreational sector. In theory, this would tend to increase the revenues or profits of commercial vessels and potentially reduce the revenues or profits of for-hire vessels. In practice, commercial vessels are not expected to experience any profit changes in the near-term based on historical landings for the sector from 2009 through 2013. Relative to the new sector allocations, based on applying the new allocation ratios to the current total ACL, commercial landings of dolphin (based on 2009-2013 commercial landings) are projected to range from 33 percent to 80 percent of the commercial ACL. In the years 2009 through 2013, the highest commercial landings occurred in 2009 and the lowest in 2013. However, commercial fishing for dolphin closed this fishing year on June 30, 2015, when the commercial sector reached its ACL. If future commercial landings of dolphin were equal to or greater than they were in 2015, the new allocation ratio may be expected to increase the revenues, and possibly profits, of commercial vessels. As noted earlier, for-hire vessels will only be affected indirectly by this final rule.

Projected reporting, recordkeeping and other compliance requirements. This rule would not impose any new reporting, recordkeeping, or other compliance requirements.

Minimizing impact on small entities and significant alternatives considered. Four alternatives, including the preferred alternative (as described in the preamble), were considered for the AMs of reducing the following year's commercial ACL by the amount of the commercial overage. The first alternative, the no-action alternative, would not impose an ACL payback provision for gag, golden tilefish, snowy grouper, wreckfish, and golden crab while retaining the ACL payback provision for the other species addressed in this action. This alternative would not address the need to create a consistent regulatory environment while preventing unnecessary negative socio-economic impacts, and ensure overfishing does not occur in accordance with the provisions set forth in the Magnuson-Stevens Act. The second alternative would require an ACL payback for ACL overages only if the species is overfished, and the third alternative would require a payback only if the combined total of commercial and recreational ACLs is exceeded. These two alternatives are more restrictive than the preferred alternative and, therefore, would be expected to have potentially larger adverse short-term economic effects on commercial entities than the preferred alternative.

Because the commercial and recreational sector re-allocation of the ACL for dolphin is not expected to result in any negative effects on any directly affected entities, the issue of significant alternatives to reduce any significant negative effects is not relevant.

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as small entity compliance guides. As part of the rulemaking process, NMFS prepared a fishery bulletin, which also serves as a small entity compliance guide. The fishery bulletin will be sent to all interested parties.

For the reasons set out in the preamble, 50 CFR part 622 is amended as follows: