Federal Register Vol. 81, No.178,

RUS published a final rule in the Federal Register on June 9, 2016, 81 FR 37121, confirming the interim rule which amends its regulation for the Rural Broadband Access Loan and Loan Guarantee Program (Broadband Loan Program). Inadvertently, an incorrect regulatory identifier number (RIN) was referenced in the headings section of the document. Under the Congressional Review Act (CRA), this rule was not designated as a “major” rule.

In FR Doc. 2016-13302, on page 37121 in the Federal Register of Thursday, June 9, 2016, appearing in the first column the following correction is made to the Headings section, RIN Number: Remove RIN 0572-AC06 and replace it with RIN 0572-AC34.

The FAA has determined that notice of, and opportunity for prior public comment on, these special conditions is impracticable because these procedures would significantly delay issuance of the design approval and thus delivery of the affected airplanes.

In addition, the substance of these special conditions has been subjected to the notice and comment period in several prior instances, and has been derived without substantive change from those previously issued. The FAA made changes for clarity in response to one recent comment on similar special conditions. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, because a delay would significantly affect the certification of the airplane, which is imminent, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon publication in the Federal Register.

We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.

On October 15, 2015, Lufthansa applied for a supplemental type certificate to install a VIP interior and cabin system, which includes installation of large, non-structural glass panels in the passenger compartment of Boeing Model 737-700 airplanes. This airplane is a twin-jet engine, transport-category airplane. The airplane seating accommodates 34 passengers, 5 cabin crewmembers, and 4 flightcrew members. Maximum takeoff weight is 171,000 lbs.

Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.101, Lufthansa must show that the Boeing Model 737-700 airplane, as changed, continues to meet the applicable provisions of the regulations listed in Type Certificate No. A16WE, or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Boeing Model 737-700 airplane because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the Boeing Model 737-700 airplane must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.

The Boeing Model 737-700 airplane, as modified by Lufthansa, will incorporate a novel or unusual design feature associated with a VIP interior and cabin system, which is the installation of large, non-structural glass panels in the passenger compartment.

No specific regulations address the design and installation of large glass components in airplane passenger cabins. Existing requirements, such as §§ 25.561, 25.562, 25.601, 25.603, 25.613, 25.775, and 25.789, provide some design standards appropriate for large glass component installations. However, additional design standards for non-structural glass augmenting the existing design are needed to complement the existing requirements. The addition of glass involved in this installation, and the potentially unsafe conditions caused by damage to such components from external sources, necessitate assuring that adequate safety standards are applied to the design and installation of the feature in Boeing Model 737-700 airplanes.

For purposes of these special conditions, a large glass component is defined as a glass component weighing 4 kg (9 lbs) or more. Groupings of glass items that individually weigh less than 4 kg, but collectively weigh 4 kg or more, also would need to be included. These special conditions also apply when showing compliance with the applicable performance standards in the regulations for the installation of these components. For example, heat-release and smoke-density testing must not result in fragmentation of the component.

The use of glass has resulted in trade-offs between the one unique characteristic of glass—its capability for undistorted or controlled light transmittance, or transparency—and the negative aspects of the material, such as extreme notch-sensitivity, low fracture resistance, low modulus of elasticity, and highly variable properties. While reasonably strong, glass is nonetheless not a desirable material for traditional airplane applications because it is heavy (about the same density as aluminum), and when it fails, it breaks into extremely sharp fragments that have the potential for injury and have been known to be lethal. Likewise, the use of glass traditionally has been limited to windshields, and instrument and display transparencies. The regulations for certification of transport-category airplanes only address, and thus only recognize, the use of glass in windshield or window applications. These regulations do address the adverse properties of glass, but even so, pilots are occasionally injured from shattered glass windshields. FAA policy allows glass on instruments and display transparencies.

Other installations of large, non-structural glass items have included the following:

• Glass panels integrated onto a stairway handrail closeout.

• Glass panels mounted in doors to allow visibility through the door when desired.

• Glass doors on some galley compartments containing small amounts of service items.

These special conditions will reduce the hazards from breakage, or from these panels' potential separation from the cabin interior.

The FAA recently received comments on proposed special conditions similar to the special conditions in this document. Notice of Proposed Special Conditions no. 25-16-03-SC, for Lufthansa modifications to the Boeing Model 747-8 airplane, was published in the Federal Register on February 25, 2016 (81 FR 9363). The Boeing Company provided comments to that notice by letter no. B-H020-REG-16-TLM-17, dated March 24, 2016. The first comment referred to the first two conditions in Notice no. 25-16-03-SC, and recommended revising the text in special condition no. 2 to more clearly define how it is different from special condition no. 1. We agreed that those two conditions could be addressed with a single test, so we combined those two conditions into a single condition, special condition no. 1, for clarity. This document also reflects that change.

Boeing commented that the load conditions in special condition no. 4, in Notice no. 25-16-03-SC, which corresponds to special condition no. 3 in this document, should include all flight and landing loads, rather than only emergency landing. These special conditions are in addition to the load requirements in the certification basis for the glass installation, rather than in lieu of the load requirements. Thus, is it not necessary to repeat that all of these loads apply to this installation. The emergency-landing load condition is not normally applied to installations of this type, but for the use of large glass in the cabin, we determined that this additional safety standard is necessary. We made no changes to special condition number 3 in response to the Boeing comments.

These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

As discussed above, these special conditions are applicable to Boeing Model 737-700 airplanes modified by Lufthansa. Should Lufthansa apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate No. A16WE to incorporate the same novel or unusual design feature, these special conditions would apply to that model as well.

This action affects only certain novel or unusual design features on one model series of airplane. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.

Pharmgate LLC (Pharmgate), 1015 Ashes Dr., Suite 102, Wilmington, NC 28405 has requested that FDA withdraw approval of those parts of NADA 138-934 for PENNCHLOR SP 500 (chlortetracycline, procaine penicillin, and sulfamethazine) Type A medicated article that pertain to use of the procaine penicillin component for the production indications of growth promotion and increased feed efficiency in swine. Pharmgate requested voluntary withdrawal of approval of these indications for use because PENNCHLOR SP 500 Type A medicated article is no longer manufactured.

With the withdrawal of approval of the production indications for procaine penicillin, the product approved under NADA 138-934 was reformulated as PENNCHLOR S 40/40 (chlortetracycline and sulfamethazine) Type A Medicated Article, a 2-way, fixed-ratio, combination drug Type A medicated article that does not contain penicillin procaine and is not labeled for production indications.

The Agency has determined under 21 CFR 25.33(a) that this action is categorically excluded from the requirement to submit an environmental assessment or an environmental impact statement because it is of a type that does not individually or cumulatively have a significant effect on the human environment.

Elsewhere in this issue of the Federal Register, FDA gave notice that the approval of those parts of NADA 138-934 pertaining to the procaine penicillin component indications for growth promotion and increased feed efficiency in swine is withdrawn, effective September 14, 2016. As provided for in the regulatory text of this document, the animal drug regulations are amended to reflect this partial withdrawal of approval and subsequent product reformulation.

NADA 138-934 was identified as being affected by guidance for industry (GFI) #213 “New Animal Drugs and New Animal Drug Combination Products Administered in or on Medicated Feed or Drinking Water of Food-Producing Animals: Recommendations for Drug Sponsors for Voluntarily Aligning Product Use Conditions with GFI #209,” December 2013.

This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.

Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and redelegated to the Director of the Center for Veterinary Medicine, 21 CFR part 558 is amended as follows:

I. Executive Summary A. Purpose of the Regulatory Action

Both HUD and the courts have long recognized that Title VIII of the Civil Rights Act of 1968, as amended, (42 U.S.C. 3601 et seq.) (Fair Housing Act or Act) prohibits harassment in housing and housing-related transactions because of race, color, religion, sex, national origin, disability,1 and familial status, just as Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) (Title VII) prohibits such harassment in employment. But no standards had been formalized for assessing claims of harassment under the Fair Housing Act. Courts have often applied standards first adopted under Title VII to evaluate claims of harassment under the Fair Housing Act, but there are differences between the Fair Housing Act and Title VII, and between harassment in the workplace and harassment in or around one's home, that warrant this rulemaking.

This rule formalizes standards for evaluating claims of quid pro quo and hostile environment harassment in the housing context. The rule does so by defining “quid pro quo harassment” and “hostile environment harassment” as conduct prohibited under the Fair Housing Act, and by specifying the standards to be used to evaluate whether particular conduct creates a quid pro quo or hostile environment in violation of the Act. Such standards will apply both in administrative adjudications and in cases brought in federal and state courts under the Fair Housing Act. This rule also adds to HUD's existing Fair Housing Act regulations illustrations of discriminatory housing practices that may constitute illegal quid pro quo and hostile environment harassment.

By establishing consistent standards for evaluating claims of quid pro quo and hostile environment harassment, this rule provides guidance to providers of housing or housing-related services seeking to ensure that their properties or businesses are free of unlawful harassment. The rule also provides clarity to victims of harassment and their representatives regarding how to assess potential claims of illegal harassment under the Fair Housing Act.

In addition, this final rule clarifies when housing providers and other entities or individuals covered by the Fair Housing Act may be held directly or vicariously liable under the Act for illegal harassment, as well as for other discriminatory housing practices that violate the Act. This rule sets forth how these traditional liability standards apply in the housing context because, in HUD's experience, there has been significant misunderstanding among public and private housing providers as to the circumstances under which they will be subject to liability under the Fair Housing Act for discriminatory housing practices undertaken by others.

The legal authority for this regulation is found in the Fair Housing Act, which gives the Secretary of HUD the “authority and responsibility for administering this Act.” 42 U.S.C. 3608(a). In addition, the Act provides that “[t]he Secretary may make rules (including rules for the collection, maintenance, and analysis of appropriate data) to carry out this title. The Secretary shall give public notice and opportunity for comment with respect to all rules made under this section.” 42 U.S.C. 3614a. HUD also has general rulemaking authority under the Department of Housing and Urban Development Act to make such rules and regulations as may be necessary to carry out its functions, powers and duties. See 42 U.S.C. 3535(d).

The major provisions of this rule:

• Formalize definitions of “quid pro quo harassment” and “hostile environment harassment” under the Fair Housing Act.

• Formalize standards for evaluating claims of quid pro quo and hostile environment harassment under the Fair Housing Act.

• Add illustrations of prohibited quid pro quo and hostile environment harassment to HUD's existing Fair Housing Act regulations.

• Identify traditional principles of direct and vicarious liability applicable to all discriminatory housing practices under the Fair Housing Act, including quid pro quo and hostile environment harassment.

Please refer to section III of this preamble, entitled “This Final Rule,” for a discussion of the changes made to HUD's regulations by this final rule.

This rule formalizes clear, consistent, nationwide standards for evaluating harassment claims under the Fair Housing Act. The rule does not create any new forms of liability under the Fair Housing Act and thus adds no additional costs for housing providers and others engaged in housing transactions.

The benefits of the rule are that it will assist in ensuring compliance with the Fair Housing Act by defining quid pro quo and hostile environment harassment that violates the Act and by specifying traditional principles of direct and vicarious liability, consistent with Supreme Court precedent. Articulating clear standards enables entities subject to the Fair Housing Act's prohibitions and persons protected by its terms to understand the types of conduct that constitute actionable quid pro quo and hostile environment harassment. As a result, HUD expects this rule to facilitate more effective training to avoid discriminatory harassment in housing and decrease the need for protracted litigation to resolve disputed claims.

Title VIII of the Civil Rights Act of 1968, as amended (the Fair Housing Act or Act), prohibits discrimination in the availability and enjoyment of housing and housing-related services, facilities, and transactions because of race, color, national origin, religion, sex, disability, and familial status. 42 U.S.C. 3601-19. The Act prohibits a wide range of discriminatory housing and housing-related practices, including, among other things, making discriminatory statements, refusing to rent or sell, denying access to services, setting different terms or conditions, refusing to make reasonable modifications or accommodations, discriminating in residential real estate-related transactions, and retaliating. See 42 U.S.C. 3604, 3605, 3606 and 3617.

In 1989, HUD promulgated fair housing regulations at 24 CFR part 100 that address discriminatory conduct in housing generally. The 1989 regulations include examples of discriminatory housing practices that cover quid pro quo sexual harassment and hostile environment harassment generally. Section 100.65(b)(5) identifies, as an example of unlawful conduct, denying or limiting housing-related services or facilities because a person refused to provide sexual favors. Section 100.400(c)(2) offers as an example of illegal conduct “. . . interfering with persons in their enjoyment of a dwelling because of race, color, religion, sex, handicap, familial status, or national origin of such persons, or of visitors or associates of such persons.” The 1989 regulations do not, however, expressly define quid pro quo or hostile environment harassment, specify standards for examining such claims, or provide illustrations of other types of quid pro quo or hostile environment harassment prohibited by the Act. The 1989 regulations also do not discuss liability standards for prohibited harassment or other discriminatory housing practices.

Over time, forms of harassment that violate civil rights laws have coalesced into two legal doctrines—quid pro quo and hostile environment. Although HUD and the courts have recognized that the Fair Housing Act prohibits harassment because of race or color,2 disability,3 religion,4 national origin,5 familial status,6 and sex,7 the doctrines of quid pro quo and hostile environment harassment are not well developed under the Fair Housing Act.

As a result, when deciding harassment cases under the Fair Housing Act, courts have often looked to case law decided under Title VII, which prohibits employment discrimination because of race, color, religion, sex, and national origin.8 But the home and the workplace are significantly different environments such that strict reliance on Title VII case law is not always appropriate. One's home is a place of privacy, security, and refuge (or should be), and harassment that occurs in or around one's home can be far more intrusive, violative and threatening than harassment in the more public environment of one's work place.9 Consistent with this reality, the Supreme Court has recognized that individuals have heightened expectations of privacy within the home.10

This rule therefore formalizes standards to address harassment in and around one's home and identifies some of the differences between harassment in the home and harassment in the workplace. While Title VII and Fair Housing Act case law contain many similar concepts, this regulation describes the appropriate analytical framework for harassment claims under the Fair Housing Act.

The rule addresses only quid pro quo and hostile environment harassment, and not conduct generically referred to as harassment that, for different reasons, may violate section 818 or other provisions of the Fair Housing Act. For example, a racially hostile statement by a housing provider could indicate a discriminatory preference in violation of section 804(c) of the Act, or it could evidence intent to deny housing or discriminate in the terms or conditions of housing in violation of sections 804(a) or 804(b), even if the statement does not create a hostile environment or establish a quid pro quo. Section 818, which makes it unlawful to “coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of” rights protected by the Act, or on account of a person having aided others in exercising or enjoying rights protected by the Act, could be violated by conduct that creates a quid pro quo or hostile environment. It is not, however, limited to quid pro quo or hostile environment claims and could be violated by other conduct that constitutes retaliation or another form of coercion, intimidation, threats, or interference because of a protected characteristic. In sum, this rule provides standards that are uniformly applicable to claims of quid pro quo and hostile environment harassment under the Fair Housing Act, regardless of the section of the Act that is alleged to have been violated, and the same discriminatory conduct could violate more than one provision of the Act whether or not it also constitutes quid pro quo or hostile environment harassment.

In response to public comment and upon further consideration by HUD of the issues presented in this rulemaking, HUD makes the following changes at this final rule stage:

• Re-words proposed § 100.7(a)(1)(iii) to avoid confusing the substantive obligation to comply with the Fair Housing Act with the standard of liability for discriminatory third-party conduct. Proposed § 100.7(a)(1)(iii) stated that a person is directly liable for “failing to fulfill a duty to take prompt action to correct and end a discriminatory housing practice by a third-party, where the person knew or should have known of the discriminatory conduct. The duty to take prompt action to correct and end a discriminatory housing practice by a third-party derives from an obligation to the aggrieved person created by contract or lease (including bylaws or other rules of a homeowner's association, condominium or cooperative), or by federal, state or local law.” Section 100.7(a)(1)(iii) of this final rule provides that a person is directly liable for “failing to take prompt action to correct and end a discriminatory housing practice by a third-party, where the person knew or should have known of the discriminatory conduct and had the power to correct it. The power to take prompt action to correct a discriminatory housing practice by a third-party depends upon the extent of control or any other legal responsibility the person may have with respect to the conduct of such third-party.”

• Adds to § 100.400 a new paragraph (c)(6) specifying as an example of a discriminatory housing practice retaliation because a person reported a discriminatory housing practice, including quid pro quo or hostile environment harassment.

• Adds to § 100.600(a)(2)(i), “Totality of the circumstances,” a new paragraph (C) that explains the reasonable person standard under which hostile environment harassment is assessed “Whether unwelcome conduct is sufficiently severe or pervasive as to create a hostile environment is evaluated from the perspective of a reasonable person in the aggrieved person's position.”

• Re-words proposed § 100.600(a)(2)(i)(B) to clarify that proof of hostile environment would not require demonstrating psychological or physical harm to avoid any confusion on that point. Proposed § 100.600(a)(2)(i)(B) stated “Evidence of psychological or physical harm is relevant in determining whether a hostile environment was created, as well as the amount of damages to which an aggrieved person may be entitled. Neither psychological nor physical harm, however, must be demonstrated to prove that a hostile environment exists.” Section 100.600(a)(2)(i)(B) in this final rule provides: “Neither psychological nor physical harm must be demonstrated to prove that a hostile environment exists. Evidence of psychological or physical harm may, however, be relevant in determining whether a hostile environment existed and, if so, the amount of damages to which an aggrieved person may be entitled.”

• Re-words proposed § 100.600(c) to clarify that a single incident may constitute either quid pro quo or hostile environment harassment if the incident meets the standard for either type of harassment under § 100.600(a)(1) or (a)(2). Proposed § 100.600(c) provided “A single incident of harassment because of race, color, religion, sex, familial status, national origin, or handicap may constitute a discriminatory housing practice, where the incident is severe, or evidences a quid pro quo.” Section 100.600(c) in this final rule provides “A single incident of harassment because of race, color, religion, sex, familial status, national origin, or handicap may constitute a discriminatory housing practice, where the incident is sufficiently severe to create a hostile environment, or evidences a quid pro quo.”

• Corrects the illustration in proposed § 100.65(b)(7) to fix a typographical error in the proposed rule. In the final rule, the word “service” is corrected and made plural.

On October 21, 2015, at 80 FR 63720, HUD published for public comment a proposed rule on Quid Pro Quo and Hostile Environment Harassment and Liability for Discriminatory Housing Practices Under the Fair Housing Act. The public comment period closed on December 21, 2015. HUD received 63 comments. The comments were submitted by public housing agencies (PHAs) and other government agencies; private housing providers and their representatives; nonprofit organizations, including fair housing, civil rights, housing advocacy, and legal groups; tenants and other individuals. This section of the preamble addresses significant issues raised in the public comments and provides HUD's responses. All public comments can be viewed at: http://www.regulations.gov/#!docketDetail;D=HUD-2015-0095.

The majority of the commenters were generally supportive of the rule, with some urging HUD to publish the rule quickly. This summary does not provide responses to comments that expressed support for the proposed rule without suggesting any modifications to the rule. General supportive comments included statements of the importance of the rule in addressing and preventing sexual assault of tenants by landlords and descriptions of how the rule would empower housing providers, renters, and other consumers to understand and avoid illegal housing practices by defining and illustrating quid pro quo and hostile environment harassment. Some commenters stated that this rule may help providers focus on the importance of eliminating harassment on their properties, and some commenters identified provisions of the rule that would provide useful guidance to housing providers, tenants, residents, and others involved in housing transactions.

More specifically, commenters expressed appreciation that the rule would apply not solely to sexual harassment but to harassment because of all protected characteristics, with some commenters sharing anecdotes of harassment based on a variety of protected characteristics that they believe the rule may help remedy. Other commenters supported the proposed rule's distinction between the Fair Housing Act and Title VII, with commenters endorsing the Department's proposal not to adopt the Title VII affirmative defense to an employer's vicarious liability.

A number of commenters assessed the rule to be in accord with case law, and approved of the balance the rule strikes between the rights and obligations of the parties in a fair housing matter. Some commenters noted that the proposed standard for determining whether conduct constitutes a hostile environment is appropriately individualized to the facts of each case. Some commenters specifically identified the benefits provided by the rule in establishing a uniform framework for fairly evaluating and appropriately responding to alleged harassment, which minimizes the subjective nature of adjudicating such claims. Other commenters expressed appreciation for the proposed rule's recognition that a single incident may establish hostile environment harassment. Some commenters expressed support for the rule's acknowledgement of the fear of retaliation many individuals with disabilities experience when trying to address issues of harassment in their housing.

Many commenters stated that the rule's description of traditional principles of agency liability is accurate and not an expansion of existing liability. Some commenters expressed appreciation that the rule would incorporate traditional liability principles for any type of discriminatory housing practice, not just harassment, and would rely on negligence principles and distinguish between direct and vicarious liability. Other commenters stated that the rule would not burden housing providers because the direct liability standard is aligned with established housing provider business practice. Some commenters expressed appreciation that the rule would place landlords on notice that they should take corrective action early on, once they know or should have known of the discrimination.

Several commenters stated that housing providers are already in possession of the tools they need to create living environments free from harassment. In particular, the commenters stated that housing providers are familiar with the corrective actions they may take in order to enforce their own rules. Another commenter stated that housing providers are in the best position to select, train, oversee, and assure the correct behavior of their agents, noting that effective enforcement of the rule depends on the potential for liability on the part of housing providers.

Some commenters expressed support for the proposed rule while seeking modifications at the final rule stage. For example, a commenter encouraged broad application of the rule so that intervention and corrective action would occur before victims of housing discrimination are forced out of their homes. Another commenter sought an expansive reading of the rule in order to prevent all forms of bullying. Some commenters sought to add factors to the totality of circumstances consideration, while other commenters sought to add to the classes protected by the rule.

Following are HUD's responses to commenters' suggested modifications to the rule and the other significant issues raised in the public comments.

Issue: A commenter requested that HUD add seniors as a protected class under the rule. Other commenters stated that elderly persons often have disabilities, which make them particularly vulnerable to harassment. These commenters requested that the final rule make clear that the rule protects elderly persons from harassment because of disability.

HUD Response: HUD shares the commenters' concern for elderly persons but does not have the authority to add a new protected class to the Fair Housing Act and therefore is unable to adopt the commenters' recommendation to expand the scope of the rule in this way. Neither age nor senior status is a protected characteristic under the Act, although persons who are discriminated against because of their disabilities are protected under the Act without regard to their age. Therefore, elderly individuals who are subjected to quid pro quo or hostile environment harassment on the basis of disability or another protected characteristic are protected under the Act and this final rule.

Issue: A commenter suggested that HUD include a clause in the final rule to protect whistleblowers who experience harassment for reporting quid pro quo or hostile environment harassment. The commenter reported having witnessed such harassment and explained that whistleblowers are particularly vulnerable to quid pro quo and hostile environment harassment, but because they are not harassed on the basis of their race, color, religion, national origin, sex, familial status, or disability, they are not directly protected by the proposed regulation.

HUD Response: Anyone who is harassed for reporting discriminatory harassment in housing is protected by the Fair Housing Act. Section 818 of the Act makes it unlawful to coerce, intimidate, threaten, or interfere with a person on account of his or her having aided or encouraged another person in the exercise or enjoyment of any right granted or protected by sections 803-806 of the Act. To highlight the essential role whistleblower protection plays in ensuring fair housing, HUD is adding to § 100.400 a new paragraph (c)(6), which provides the following example of a discriminatory housing practice “Retaliating against any person because that person reported a discriminatory housing practice to a housing provider or other authority.”

Issue: Several commenters urged HUD to state in the final rule that harassment against persons who are lesbian, gay, bisexual, or transgender (LGBT), or because of pregnancy, violates the Fair Housing Act. They asked HUD to define harassment because of sex to include harassment based on sexual orientation, gender identity, sex stereotyping, or pregnancy. The commenters referenced studies about the pervasive harassment and discrimination such persons face in housing. They also noted that a number of federal courts and federal agencies have interpreted Title VII and other laws prohibiting discrimination because of sex to include discrimination on the basis of gender identity, gender transition, or transgender status. The commenters also pointed to HUD's “Equal Access to Housing in HUD Programs Regardless of Sexual Orientation or Gender Identity” rule, which provides that persons may not be denied access to HUD programs because of sexual orientation or gender identity.

HUD Response: The Fair Housing Act already expressly prohibits discrimination based on pregnancy as part of its prohibition of discrimination because of familial status (42 U.S.C. 3602(k)), and HUD's Equal Access Rule applies only to HUD programs.

HUD agrees with the commenters' view that the Fair Housing Act's prohibition on sex discrimination prohibits discrimination because of gender identity. In Price Waterhouse v. Hopkins, the Supreme Court interpreted Title VII's prohibition of sex discrimination to encompass discrimination based on non-conformance with sex stereotypes, stating that “[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” 11 Taking note of Price Waterhouse and its progeny, in 2010, HUD issued a memorandum recognizing that sex discrimination prohibited by the Fair Housing Act includes discrimination because of gender identity. In 2012, the Equal Employment Opportunity Commission (EEOC) reached the same conclusion, “clarifying that claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII's sex discrimination prohibition.” 12 Following the EEOC's decision, the Attorney General also concluded that:

HUD reaffirms its view that under the Fair Housing Act, discrimination based on gender identity is sex discrimination. Accordingly, quid pro quo or hostile environment harassment in housing because of a person's gender identity is indistinguishable from harassment because of sex.14

HUD, in its 2010 memorandum, also advised that claims of housing discrimination because of sexual orientation can be investigated under the Price Waterhouse sex-stereotyping theory. Over the past two decades, an increasing number of Federal courts, building on the Price Waterhouse rationale, have found protections under Title VII for those asserting discrimination claims related to their sexual orientation.15 Many Federal-sector EEOC decisions have found the same.16 Although some Federal appellate courts have declined to find sex discrimination under Title VII based on the sole fact of the person's sexual orientation, those courts nonetheless recognized the Price Waterhouse sex-stereotyping theory may be used to find discrimination based on sex.17 These Title VII legal authorities are consistent with HUD's 2010 memorandum, in which HUD interprets the Fair Housing Act's prohibition on sex discrimination to include, at a minimum, discrimination related to an individual's sexual orientation where the evidence establishes that the discrimination is based on sex stereotypes. HUD's interpretation of sex discrimination under the Fair Housing Act is also consistent with the Department of Health and Human Services' rule interpreting sex discrimination under Section 1557 the Affordable Care Act 18 and the Department of Labor's rule interpreting sex discrimination under Title VII of the Civil Rights Act of 1964.19

Issue: Some commenters asked HUD to provide a definition of harassment. A commenter noted that the proposed rule defines two types of harassment—quid pro quo and hostile environment, but does not define the general term “harassment.” Another commenter stated that if HUD believes that other types of harassment may also violate the Fair Housing Act, HUD should provide a definition of harassment. Other commenters strongly supported the rule's definitions of quid pro quo and hostile environment harassment, describing them as clear and inclusive, and stated that the definitions and related examples provided in the rule clarify what conduct the Fair Housing Act prohibits and will aid all stakeholders' understanding of the rule's provisions.

HUD Response: The term harassment has broad colloquial usage with no defined parameters. For this reason, the final rule defines the specific terms “quid pro quo” and “hostile environment harassment.” Other conduct that might generically be referred to as harassment might fall in the categories of quid pro quo or hostile environment, or the conduct may constitute a different type of discriminatory housing practice in violation of section 818 of the Act or other provisions of the Act, or the conduct may not violate the Act at all. As the preamble to the proposed rule explained, a violation of section 818 may be established using the standards for quid pro quo or hostile environment harassment or by the specific elements of a section 818 violation, i.e., (1) the plaintiff or complainant exercised or enjoyed—or aided or encouraged another person in the exercise or enjoyment of—a right guaranteed by sections 803-06; (2) the defendant's or respondent's conduct constituted coercion, intimidation, a threat, or interference; and (3) a causal connection existed between the exercise, enjoyment, aid or encouragement of the right and the defendant's or respondent's conduct.

Issue: Some commenters expressed concern that the proposed rule did not expressly state that sections 804(b) and 818 of the Fair Housing Act apply to discrimination that occurs after the complainant or plaintiff acquires the dwelling. The commenters stated that some courts have held that these provisions apply only to discrimination that affects access to housing and urged HUD to add language to the rule making clear that these particular provisions apply to post-acquisition discrimination claims.

HUD Response: HUD believes that the definitions of “quid pro quo” and “hostile environment harassment” make clear HUD's view that the Act covers post-acquisition conduct and therefore no additional language is required. These definitions mirror the coverage of sections 804(b), 804(f)(2), and 818 of the Fair Housing Act, which plainly apply to both pre-acquisition and post-acquisition discrimination claims. Moreover, HUD has long interpreted and enforced these provisions of the Act and others to protect against discrimination that occurs before one acquires a dwelling as well as while one is living in the dwelling. HUD's 1989 regulations interpreting sections 804(b), 804(f)(2), and 818 of the Act, for example, provide that discrimination prohibited under these provisions includes the “maintenance or repairs of sale or rental dwellings,” “[d]enying or limiting the use of privileges, services, or facilities associated with a dwelling,” and threatening, intimidating or interfering with persons “in their enjoyment of a dwelling.” The inclusion of language covering the maintenance of housing, the continued use of privileges, services, or facilities associated with housing, and the “exercise or enjoyment” of housing indicates circumstances in which residents—as opposed to just applicants—benefit from the Act's protections throughout their residency.

Sections 100.65(b)(6)-(7) of the proposed and of the final rule further illustrate some ways in which a person may violate sections 804(b), 804(f)(2), and 818 of the Fair Housing Act: “conditioning the terms, conditions, or privileges relating to the sale or rental of a dwelling, or denying or limiting the services or facilities in connection therewith, on a person's response to harassment because of [a protected characteristic]; “subjecting a person to harassment because of [a protected characteristic] that has the effect of imposing different terms, conditions, or privileges relating to the sale or rental of a dwelling or denying or limiting services or facilities in connection with the sale or rental of a dwelling.” In sum, the Act and HUD's regulations, including this final rule, make clear that the Act prohibits discrimination that occurs while a person resides in a dwelling, and courts have repeatedly interpreted the Act similarly.20

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

The special local regulations listed in 33 CFR 100.501 and safety zones in 33 CFR 165.506 were last amended on April 16, 2015 (80 FR 20418). The Coast Guard published an interim final rule and request for comments on April 22, 2016 (81 FR 23605). During the comment period that ended July 21, 2016 we received one comment.

The Coast Guard issues this rulemaking under authority in 33 U.S.C. 1231; 33 U.S.C. 1233; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.

The Coast Guard regularly updates special local regulations and safety zones established for recurring marine events and fireworks displays that take place either on or over the navigable waters of the United States. Under that rule, the list of recurring marine events requiring special local regulations or safety zones is updated with revisions, additional events, and removal of events that no longer take place within the Fifth Coast Guard District. The Fifth Coast Guard District area of responsibility is defined in 33 CFR 3.25.

The purpose of this rulemaking is to ensure the safety of persons, vessels and the navigable waters within close proximity to marine events and or fireworks displays before, during, and after the scheduled event. Publishing these regulatory updates in a single rulemaking promotes administrative efficiency and reduces costs involved in producing a separate rule for each individual recurring event. This action also provides the public with notice through publication in the Federal Register of future recurring marine events and fireworks displays and their accompanying regulations, special local regulations and safety zones. This rule provides separate tables for each Coast Guard Sector within the Fifth Coast Guard District.

As noted above, we received one comment on the Interim final rule published April 22, 2016. The respondent comment addressed a concern that “Any permits for Fireworks Displays must have boundaries set no closer than 500 yards from any fuel depot, shipyard, marina, cargo facility that handles hazardous or flammable cargo or any “facility” that handles hazardous or flammable materials.” The commenter suggested that the safety zone radius should be a distance of 500 yards plus the expected radius of the “hot” area created by the fireworks display.

No changes were made to the rule based upon this comment; however the Coast Guard recognizes the importance of appropriate controls on fireworks displays that take place over and or adjacent to navigable waters of the United States. Accordingly USCG authority and oversight is based on current Federal regulations, applicable National Fire Protection Association (NFPA) codes, and lessons learned from accident report findings. We believe these recommendations provide a more thorough and nuanced safety area than a blanket radius requirement. The CG Captain of the Port (COTP) ensures safety of persons and vessels on navigable waters of the United States in close proximity to fireworks events through coordination with event sponsor, fireworks operator, fire department, police department, Authority Having Jurisdiction (AHJ), and other appropriate entities. The definition of “Authority Having Jurisdiction (AHJ)” is in accordance with NFPA 1123 which states, “The organization, office, or individual responsible for approving equipment, materials, an installation, or a procedure.” It is incumbent upon the event sponsor and or fireworks operator to consult with AHJ regarding fireworks display boundaries for restricted areas when seeking a fireworks permit. Under this arrangement the fireworks operator should provide a copy of the fireworks permit issued by the AHJ to the COTP to confirm compliance with local government regulations, ordinances and NFPA codes. The safety guidance provided in NAVIGATION AND VESSEL INSPECTION CIRCULAR NO. 702, dated June 18, 2002 sets forth Coast Guard policy used by USCG Captains of the Port; this document may be viewed in the docket.

This rule adds 4 new special local regulations for marine events, removes 8 regulations and revises 18 previously established regulations for marine events listed in the Table to § 100.501. Other than changes to the dates and locations of certain events, the other provisions in 33 CFR 100.501 remain unchanged.

This rule provides additional information about regulated areas and the restrictions that apply to mariners and new terms including “Race Area”, “Spectator Area” and “Buffer Zone”. The 24 hour contact phone numbers are updated for Coast Guard Sectors Delaware Bay and North Carolina.

The Coast Guard revises regulations at 33 CFR 100.501 by adding 4 new special local regulations. The special local regulations are listed in Table 1, including reference by section as printed in the Table to § 100.501.

The Coast Guard amends regulations at 33 CFR 100.501 by disestablishing the following 8 special local regulated areas listed in Table 2.

This rule revises 18 preexisting special local regulations that involves change to marine event date(s) and/or coordinates. These events are listed in Table 3, with reference by section as printed in the Table to § 100.501.

The Coast Guard will enforce regulations in 33 CFR 165.1321 for the Sitcum Waterway Security Zone identified in paragraph (c)(2) of that section, from September 15, 2016, at 6 a.m. through 11:59 p.m. on September 20, 2016, unless cancelled sooner by the Captain of the Port or Designated Representative. Under the provisions of 33 CFR 165.1321, the security zone will provide for the regulation of vessel traffic in the vicinity of military cargo loading facilities in the navigable waters of the United States. The security zones also exclude persons and vessels from the immediate vicinity of these facilities during military cargo loading and unloading operations. In addition, the regulation establishes requirements for all vessels to obtain permission of the COTP or Designated Representative, including the Vessel Traffic Service (VTS), to enter, move within, or exit these security zones when they are enforced. Entry into this zone is prohibited unless authorized by the Captain of the Port or a Designated Representative, or is otherwise allowed under exemption or waiver provisions in 33 CFR 165.1321(h) or (i).

This notice of enforcement is issued under authority of 33 CFR 165.1321 and 5 U.S.C. 552 (a). In addition to this notice of enforcement in the Federal Register, the Coast Guard will provide the maritime community with notification of this enforcement period via marine information broadcasts and on-scene assets. If the COTP determines that the regulated area need not be enforced for the full duration stated in this notice of enforcement, a Broadcast Notice to Mariners may be used to grant general permission to enter the regulated area.

We published a notice of proposed priority (NPP) in the Federal Register on June 8, 2016 (81 FR 36833). That document contained background information and our reasons for proposing the additional priority.

Public Comment: In response to our invitation in the NPP, 13 parties submitted comments on the proposed priority.

Analysis of Comments and Changes: An analysis of the comments follows. We group our discussion according to the general issues raised. We do not address technical and other minor changes.

Comment: Several commenters expressed concern that the proposed priority would adversely affect rural communities and students who reside within them, where the geographic isolation of students from one particular racial, ethnic, or socioeconomic group would render efforts to diversify schools difficult or impossible. Many of these commenters expressed support for the priority and the importance of addressing the growing segregation and inequality in our Nation's schools, but suggested that the Department use the priority as an invitational priority, as opposed to a competitive preference or absolute priority, to ensure that rural applicants are not unfairly disadvantaged in grant competitions.

Discussion: We appreciate the commenters' concern that the priority may not be appropriate or beneficial for rural communities whose geographical constraints make increasing socioeconomic diversity infeasible. First, we note that increasing educational equity for rural students and communities is a focus area for the Department of Education (the Department); for example, Priority 4—Supporting High-Need Students from the 2014 Supplemental Priorities includes language that allows the Department to prioritize projects designed to improve outcomes for students served by rural local educational agencies (LEAs).

Second, we acknowledge that solutions to educational challenges are often different in rural, urban, and suburban communities. We note, however, that the Department has discretion in how and when it will use this priority (including whether to use it as an invitational or other type of priority), and does not intend to use this priority in a way that would disadvantage rural applicants. Rather, it is our intention to use this priority strategically to encourage diversity only in those situations where we believe such efforts are most appropriate and best support the possibility of increasing socioeconomic diversity in schools.

Changes: None.

Comment: In addition to concerns related to geographically isolated, rural communities, many commenters raised questions regarding the utility of the priority in Indian country. Specifically, these commenters expressed concerns about how the priority would affect American Indian or Alaska Native students who attend schools in rural areas, on tribal lands that are geographically isolated, or in villages or communities that are not accessible, legally or physically, to students who are not members of a particular American Indian or Alaska Native tribe. One commenter suggested the Department can protect against unintended negative impacts on Native students by including a race-based preference whenever using the priority for socioeconomic diversity.

Discussion: We understand and appreciate the concerns raised with respect to Native students and their communities. As with rural LEAs, however, the Department believes that the 2014 Supplemental Priorities include a priority to help address these concerns; specifically, Priority 4—Serving High-Need Students, which allows the Department to prioritize projects designed to serve students who are members of federally recognized Indian tribes, provides a sufficient basis for the Department to channel Federal resources toward improved outcomes for Native students. With respect to the comment suggesting that the Department include a race-based preference in tandem with the priority, we note that Priority 12—Promoting Diversity from the 2014 Supplemental Priorities includes language that allows the Department to focus on projects designed to increase racial and ethnic diversity. Finally, as mentioned in the discussion of the comments regarding rural communities, while the Department declines to make any changes to the priority based on these comments, we reiterate our intention to use this priority strategically to encourage diversity only in those situations where we believe such efforts are most appropriate and we do not intend to use it in a way that would adversely affect Native students.

Changes: None.

Comment: Several commenters expressed support for increasing diversity in our Nation's public schools. One commenter suggested that a focus on diversity must be accompanied by concerted efforts to foster and maintain positive and supportive school climates. The commenter further urged the Department to issue guidance or other technical assistance documents related to school diversity. Finally, the commenter suggested that the Department ensure that potential grant applicants wishing to focus on diversity initiate and maintain communications with their local communities.

Discussion: We appreciate the comments in support of the priority and the Department's focus on increasing diversity. The Department agrees that a focus on positive school climate is an important part of improving outcomes for all students. Moreover, a positive, supportive school climate may be essential to ensuring that a diverse student body achieves true cohesiveness. While we decline to make any changes to the priority based on this comment, the Department remains committed to exploring avenues to encourage safe, supportive, and positive school climates. For example, Priority 13—Improving School Climate, Behavioral Supports, and Correctional Education from the 2014 Supplemental Priorities offers opportunities to direct Federal resources toward projects designed to improve school climate.

We appreciate the comment suggesting that the Department issue guidance or technical assistance documents about school diversity. We agree that additional resources may be helpful in assisting LEAs and communities in undertaking efforts to diversify their schools. We note that there are existing resources, such as the Department's Equity Assistance Centers, that stand ready to offer technical assistance related to school climate issues based on race, national origin, sex, and religion. Moreover, the Department continues to explore all opportunities to develop and issue guidance materials in this and other important policy areas.

Finally, the Department agrees with the recommendation that grant applicants collaborate and communicate with their local communities. Public engagement is an integral part of any comprehensive, successful school diversity strategy. In that regard, the priority includes language that contemplates community input, robust family and community involvement, and other forms of public engagement.

Changes: None.

Comment: None.

Discussion: We are revising paragraph (d) to allow the Department more flexibility to tailor the priority for each competition in which the priority is used in order to narrow the focus on the strategies proving most effective in a specific context or on where the greatest needs are from year to year. We note that revisions to paragraph (d) would still allow the Department to use the paragraph in its entirety, as appropriate.

Changes: In the introductory language, subparagraph (ii), and subparagraph (vi) of paragraph (d), we have revised the priority to provide the Department the flexibility described above. In addition, we have revised the wording in subparagraphs (ii), (v), and (vi) so that each will stand better on its own should it be used in isolation in a grant competition.

Final Priority: The Secretary establishes the following priority for use primarily in any discretionary grant competition focused on elementary and secondary education, as appropriate, in FY 2016 and future years. This priority is in addition to the 2014 Supplemental Priorities.

Projects that are designed to increase socioeconomic diversity in educational settings by addressing one or more of the following:

(a) Using established survey or data-collection methods to identify socioeconomic stratification and related barriers to socioeconomic diversity at the classroom, school, district, community, or regional level.

(b) Developing, evaluating, or providing technical assistance on evidence-based policies or strategies designed to increase socioeconomic diversity in schools.

(c) Designing or implementing, with community input, education funding strategies, such as the use of weighted per-pupil allocations of local, State, and eligible Federal funds, to provide incentives for schools and districts to increase socioeconomic diversity.

(d) Developing or implementing policies or strategies to increase socioeconomic diversity in schools that are evidence-based; demonstrate ongoing, robust family and community involvement, including a process for intensive public engagement and consultation; and meet one or more of the following factors—

(i) Are carried out on one or more of an intra-district, inter-district, community, or regional basis;

(ii) Reflect coordination with other relevant government entities, including housing or transportation authorities, to the extent practicable;

(iii) Are based on an existing, public diversity plan or diversity needs assessment; and

(iv) Include one or both of the following strategies—

(A) Establishing school assignment or admissions policies that are designed to give preference to low-income students, students from low-performing schools, or students residing in neighborhoods experiencing concentrated poverty to attend higher-performing schools; or

(B) Establishing or expanding schools that are designed to attract substantial numbers of students from different socioeconomic backgrounds, such as magnet or theme schools, charter schools, or other schools of choice.

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

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

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

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

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

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

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

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

(3) Materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles stated in the Executive order.

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

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

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

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

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

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

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

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

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

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

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

Discussion of Costs and Benefits: The final priority will not impose significant costs on entities that would receive assistance through the Department's discretionary grant programs. Additionally, the benefits of implementing the final priority outweigh any associated costs because it will allow the Department to focus discretionary grant competitions on this important area.

Application submission and participation in a discretionary grant program are voluntary. The Secretary believes that the costs imposed on applicants by the final priority will be limited to paperwork burden related to preparing an application for a discretionary grant program that is using the priority in its competition. Because the costs of carrying out activities would be paid for with program funds, the costs of implementation would not be a burden for any eligible applicants, including small entities.

Regulatory Flexibility Act Certification: For these reasons as well, the Secretary certifies that these final regulations will not have a significant economic impact on a substantial number of small entities.

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

This document provides early notification of our specific plans and actions for these programs.

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

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

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

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.

Organization of this document. The following outline is provided to aid in locating information in this preamble.

On October 20, 2010, EPA issued the final rule on the “Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM2.5)—Increments, Significant Impact Levels (SILs) and Significant Monitoring Concentration (SMC)” (2010 PSD Rule). See 75 FR 64864. This rule established several components for making PSD permitting determinations for PM2.5, including a system of “increments,” which is the mechanism used to estimate significant deterioration of ambient air quality for a pollutant. These increments are codified in 40 CFR 51.166(c) and 40 CFR 52.21(c).

On July 25, 2014, the VT DEC submitted a revision to its state implementation plan (SIP) primarily addressing permitting requirements for PM2.5 emissions. In a letter dated July 13, 2016, VT DEC withdrew some, but not all, of the revisions the State requested in its 2014 SIP submittal. The State withdrew these provisions for various reasons; either because more information would be needed before certain provisions could be approved by EPA into the SIP, one provision was erroneously submitted, or Vermont intends in the near future to revise certain provisions and resubmit them to EPA. On July 20, 2016, EPA's Region I Administrator signed a direct final notice approving the remaining revisions except for revisions Vermont made to its Air Pollution Control Regulations (APCR), Table 2 (Prevention of Significant Deterioration (PSD) Increments) and Table 3 (Levels of Significant Impact).

Vermont revised Table 2 by adding increments for PM2.5 as well as some minor grammatical changes. Vermont revised Table 3 by changing the table's title, removing the level of significant impact for Total Suspended Particles, and adding levels for PM2.5. Tables 2 and 3 address different aspects of permitting. Table 2 addresses the amount of a pollutant (increment consumption) a major new or modified source may contribute to the ambient air consistent with the CAA's requirements. Table 3 addresses situations in which Vermont's regulations would require emissions offsets, even for major new or modified sources that are subject to PSD preconstruction permitting requirements.

EPA has found the PSD increment values added to Table 2 to be consistent with 40 CFR 51.166(c) and has also found that the increment values meet the anti-back sliding requirements of Section 110(l) of the Clean Air Act. Therefore, EPA is approving revised Table 2 into the Vermont SIP.

Vermont revised Table 3 by adding thresholds for PM2.5 for Class I, II, and III areas. Major new or modified sources subject to PSD permitting requirements must obtain emissions offsets if the listed thresholds would be exceeded in an area found not to be attaining the national ambient air quality standard. The thresholds in Table 3 for PM2.5 for Class II and Class III areas are consistent with the PM2.5 thresholds in 40 CFR 51.165(b)(2), while Vermont's thresholds for Class I areas are significantly more stringent than the federal regulation. Vermont also removed from Table 3 the threshold for Total Suspended Particles because EPA's regulations no longer contain a threshold for this pollutant. EPA currently sets the National Ambient Air Quality Standard for particulate matter as PM10 and PM2.5 and no longer sets a standard for Total Suspended Particles. EPA has found both revisions to Table 3 to be consistent with 40 CFR 51.165(b)(2) and Section 110(l) of the Clean Air Act. Therefore, EPA is approving revised Table 3 into the Vermont SIP.

The EPA is publishing this action without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should relevant adverse comments be filed. This rule will be effective November 14, 2016 without further notice unless the Agency receives relevant adverse comments by October 14, 2016.

If the EPA receives such comments, then EPA will publish a notice withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on the proposed rule. All parties interested in commenting on the proposed rule should do so at this time. If no such comments are received, the public is advised that this rule will be effective on November 14, 2016 and no further action will be taken on the proposed rule. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of Vermont's Air Pollution Control Regulations described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these documents generally available electronically through http://www.regulations.gov.

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 14, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of this Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

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

I. Background

The Lamar area was designated nonattainment for PM10 and classified as moderate by operation of law upon enactment of the Clean Air Act (CAA) Amendments of 1990. See 56 FR 56694, 56705, 56736 (November 6, 1991). EPA approved Colorado's nonattainment area SIP for the Lamar PM10 nonattainment area on June 9, 1994 (59 FR 29732).

On May 13, 2013, the Governor of Colorado's designee submitted the second 10-year update of the PM10 maintenance plan for the Lamar area to the EPA. On June 1, 2016, the EPA published a proposed rulemaking in which we proposed to approve the 10-year update because it demonstrates continued maintenance of the PM10 NAAQS through 2025.

We received one comment letter during the public comment period, which was submitted anonymously.

Comment: Given the high number of high wind occurrences, and given the consistently windy nature of the Lamar area, the EPA cannot rely on the Exceptional Events Rule (EER) to ignore PM10 exceedances. In doing so, the EPA is failing to provide environmental justice for people in rural areas, by failing to provide them with clean air.

Response: 55 exceedances between two monitors over the course of 14 years were reported by the City of Lamar. The EPA notes that high wind events do not have to be rare to be considered an exceptional event. Quoting from the “Interim Guidance on the Preparation of Demonstrations in Support of Requests to Exclude Ambient Air Quality Data Affected by High Winds Under the Exceptional Events Rule,” U.S. EPA May 2013 page 20, it states,

I. Background and Overview

On January 22, 2010, (published at 75 FR 6474, February 9, 2010), EPA promulgated a new 1-hour primary NAAQS for NO2 at a level of 100 parts per billion, based on a 3-year average of the 98th percentile of the yearly distribution of 1-hour daily maximum concentrations. Pursuant to section 110(a)(1) of the CAA, states are required to submit SIPs meeting the requirements of section 110(a)(2) within three years after promulgation of a new or revised NAAQS. Section 110(a)(2) requires states to address basic SIP requirements, including emissions inventories, monitoring, and modeling to assure attainment and maintenance of the NAAQS. States were required to submit such SIPs for the 2010 1-hour NO2 NAAQS to EPA no later than January 22, 2013.

In a proposed rulemaking published on June 28, 2016 (81 FR 41905), EPA proposed to approve Georgia's 2010 1-hour NO2 NAAQS infrastructure SIP submission submitted on March 25, 2013, with the exception of the PSD permitting requirements for major sources of sections 110(a)(2)(C), prong 3 of D(i), and (J) and the interstate transport requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1, 2, and 4), for which EPA did not propose any action. On March 18, 2015 (80 FR 14019), EPA approved Georgia's March 25, 2013, infrastructure SIP submission regarding the PSD permitting requirements for major sources of sections 110(a)(2)(C), prong 3 of D(i), and (J) for the 2010 1-hour NO2 NAAQS. Therefore, EPA is not taking any action today pertaining to sections 110(a)(2)(C), prong 3 of D(i), and (J). Additionally, on July 11, 2016, EPA published a proposed rule related to the prong 4 element of Georgia's March 25, 2013, SIP submission for the 2010 1-hour NO2 NAAQS. See 81 FR 44831. EPA will consider final action on the prong 4 element of Georgia's March 25, 2013, SIP submission for the 2010 1-hour NO2 NAAQS through a separate rulemaking. With respect to the interstate transport requirements of section 110(a)(2)(D)(i)(I) (prongs 1 and 2), EPA does not yet have a submission before the Agency for action. The details of Georgia's submission and the rationale for EPA's action are explained in the proposed rulemaking. Comments on the proposed rulemaking were due on or before July 28, 2016. EPA received no adverse comments on the proposed action.

With the exception of the PSD permitting requirements for major sources of sections 110(a)(2)(C), prong 3 of D(i), and (J) and the interstate transport requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1, 2, and 4), EPA is taking final action to action to approve Georgia's infrastructure submission submitted on March 25, 2013, for the 2010 1-hour NO2 NAAQS. EPA is taking final action to approve Georgia's infrastructure SIP submission for the 2010 1-hour NO2 NAAQS because the submission is consistent with section 110 of the CAA.

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

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

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

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

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

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

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

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

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

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

The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 14, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

40 CFR part 52 is amended as follows:

In submittals dated May 16, 2011 (two separate submittals), and September 5, 2013, DAQ submitted to EPA changes to the North Carolina SIP with regard to the State's PSD and NNSR regulations found at 15A North Carolina Administrative Code (NCAC) 02D .0530 and 15A NCAC 02D .0531. These SIP submittals modify North Carolina's NSR permitting regulations (for both PSD and NNSR) and include the adoption of some federal requirements regarding implementation of the PM2.5 NAAQS through the NSR permitting program. In the notice of proposed rulemaking (NPRM) published on May 10, 2016 (81 FR 28797), EPA proposed to take the following four actions, some with multiple parts, regarding the North Carolina submittals:

• Approval of a May 16, 2011, SIP submittal from North Carolina (as revised and updated by the State's September 5, 2013, SIP submittal) as meeting the requirements of EPA's rule, “Implementation of the New Source Review (NSR) Program for Particulate Matter Less Than 2.5 Micrometers (PM2.5),” Final Rule, 73 FR 28321 (May 16, 2008) (hereafter referred to as the “2008 NSR PM2.5 Implementation Rule”).

• Disapproval of the portions of North Carolina's September 5, 2013, SIP submittal pertaining to adoption and implementation of the PM2.5 increments because North Carolina's proposed SIP revisions do not fully meet the requirements of EPA's rulemaking, “Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM2.5)—Increments, Significant Impact Levels (SILs) and Significant Monitoring Concentration (SMC),” Final Rule, 75 FR 64864 (October 20, 2010) (hereafter referred to as the “2010 PSD PM2.5 Rule”). Specifically, though paragraphs (q) and (v) of North Carolina's revised PSD regulations at 15A NCAC 02D .0530 incorporate the federally required numerical PM2.5 increments, North Carolina's regulations fail to include other federally required provisions needed to implement the PM2.5 increments, including (1) the definition of “[m]ajor source baseline date” for PM2.5 codified at 40 CFR 51.166(b)(14)(i)(c) (defined as October 20, 2010); (2) the definition of “[m]inor source baseline date” for PM2.5 codified at 40 CFR 51.166(b)(14)(ii)(c) (which establishes the PM2.5 trigger date as October 20, 2011); and (3) the definition of “[b]aseline area” codified at 40 CFR 51.166(b)(15)(i).1 Without these definitions, North Carolina's PSD regulations do not require PSD sources to conduct the appropriate analyses demonstrating that emissions from proposed construction of new major stationary sources or major modifications will not cause or contribute to air quality deterioration beyond the amount allowed by the PM2.5 increments. Therefore, EPA proposed to disapprove all of the PM2.5 increment provisions set forth in North Carolina's September 5, 2013, SIP submittal, including all of the PM2.5-related changes to 15A NCAC 02D .0530 at paragraphs (e), (q), and (v).2

• Approval of administrative changes to North Carolina's PSD and NNSR regulations at 15A NCAC 02D .0530 and 15A NCAC 02D .0531 provided by the State in a SIP submittal also dated May 16, 2011, including clarification of the applicability of best available control technology (BACT) and lowest achievable emission rate (LAER) for electrical generating units (EGUs) in the State, and the inclusion of an additional Federal Land Manager (FLM) notification provision.

• Approval, in part, and disapproval, in part, of the PSD elements of North Carolina's infrastructure SIP submittals for the 2008 lead, 2008 8-hour ozone, 2010 SO2, 2010 NO2 and 2012 PM2.5 NAAQS and conversion of the Agency's previous conditional approvals of the PSD elements of North Carolina's infrastructure SIP submittals for the 1997 Annual PM2.5 and 2006 24-hour PM2.5 NAAQS to partial approvals and partial disapprovals.

EPA received one adverse comment submission, from DAQ, on the May 10, 2016, NPRM to approve, in part, and disapprove, in part, changes to North Carolina's SIP-approved NSR permitting regulations. The comment submission is available in the docket for this final rulemaking action.

In its comments, DAQ objects to EPA's proposed disapproval of the PM2.5 increment-related portions of paragraphs (e), (q) and (v) of North Carolina's PSD rule 15A NCAC 02D .0530 for failing to incorporate the definitions of “major source baseline date,” “minor source baseline date,” and “baseline area” as found in EPA's 2010 PSD PM2.5 Rule. DAQ contends that EPA's proposed disapproval of North Carolina's PM2.5 increment provisions fails to properly account for the decision by the United States Court of Appeals for the District of Columbia (D.C. Circuit) in Natural Resource Defense Council v. EPA, 706 F.3d 428 (D.C. Cir., 2013) (NRDC), where the Court determined that PM2.5 is not a new pollutant, but rather is encompassed by the statutory definition of the pollutant PM10. According to DAQ, North Carolina's regulations, which incorporate by reference the prior federal definitions applicable to “particulate matter” (rather than the definitions applicable to PM2.5 promulgated in EPA's 2010 PSD PM2.5 Rule), are consistent with the Clean Air Act (CAA or Act) and NRDC and can be approved into the SIP as written. For the same reason, DAQ also objects to EPA's proposed disapproval of the PSD elements of seven infrastructure SIP submittals. DAQ's comments incorporate by reference the following documents: (1) Opening Brief of Petitioner in North Carolina v. United States Environmental Protection Agency, 13-1312 and 14-1186, dated October 9, 2014; (2) Reply Brief of Petitioner for North Carolina v. United States Environmental Protection Agency, 13-1312 and 14-1186, dated February 10, 2015; and (3) letter from John Skvarla (North Carolina Department of Environment and Natural Resources 3 ) to Gina McCarthy (EPA), dated August 22, 2013.

The legal briefs attached to DAQ's comments were filed in the D.C. Circuit by the State of North Carolina in support of the State's consolidated petitions for review of EPA's 2010 PSD PM2.5 Rule and of EPA's denial of the State's administrative petition for reconsideration of the PSD PM2.5 Rule. In the briefs, the State challenged the 2010 PSD PM2.5 Rule on the basis that the rule improperly set new baseline dates for calculating PM2.5 increment consumption rather than using the pre-existing particulate matter baseline dates set forth in the CAA. EPA filed a Response Brief in that case disputing the legal arguments in the briefs that DAQ has now submitted to support its comments on this SIP rule. The D.C. Circuit dismissed both of North Carolina's petitions for review as untimely. See North Carolina v. EPA, 614 Fed. Appx. 517, 2015 U.S. App. LEXIS 16246 (D.C. Cir. 2015).

The August 22, 2013, letter from John Skvarla that DAQ attached to its comments was sent by North Carolina to EPA prior to the D.C. Circuit litigation and raised the same concern regarding the PM2.5 increment baseline dates in the 2010 PSD PM2.5 Rule that North Carolina raised in the D.C. Circuit litigation. EPA responded to the April 22, 2013, letter from Secretary Skvarla to Administrator McCarthy in conjunction with EPA's August 28, 2014, response to the State's petition for EPA to reconsider or revise the 2010 PSD PM2.5 Rule.

In response to DAQ's comments, EPA notes that DAQ does not claim that North Carolina's PM2.5 increment provisions satisfy the relevant federal criteria for state PSD programs set forth at 40 CFR 51.166 (as promulgated in the 2010 PSD PM2.5 Rule). Rather, DAQ's opposition to EPA's proposed disapproval of North Carolina's PM2.5 increment provisions is based entirely on DAQ's claim that the federal PM2.5 increment baseline provisions set forth at 40 CFR 51.166 are unlawful. In determining whether to approve North Carolina's PM2.5 increment submittal, however, EPA considers only whether North Carolina's proposed SIP revision satisfies the minimum federal criteria set forth at 50 CFR 51.166 and other requirements governing SIP revisions. EPA's action on North Carolina's submittal does not reopen for comment EPA's determination of the appropriate PM2.5 increment baselines for SIP-approved PSD programs, which were established in the final 2010 PSD PM2.5 Rule published in the Federal Register on October 20, 2010 (75 FR 64864).

Under CAA section 307(b)(1), 42 U.S.C. 7607(b)(1), any petition for review of the 2010 PSD PM2.5 Rule had to be filed in the D.C. Circuit within 60 days of EPA's publication of the rule in the Federal Register, unless such petition is based solely on grounds arising after the 60th day, in which case the petition had to be filed within 60 days after such grounds arose. As the D.C. Circuit explained in dismissing North Carolina's petition for review of the 2010 PSD PM2.5 Rule, North Carolina missed the statutory deadline for filing a petition for review of the PM2.5 increment baseline provisions set forth in that Rule and did not file its court challenge within 60 days of the NRDC court decision that the State alleged to establish “after arising” grounds for such a challenge. See North Carolina, 614 Fed. Appx. at 517.4

Based on its view of the NRDC court decision, North Carolina separately petitioned EPA to reconsider or revise the baseline date in the 2010 PSD PM2.5 Rule and subsequently challenged EPA's response to that petition in the D.C. Circuit. EPA determined that revision of the baseline dates for PM2.5 in the 2010 rule was not appropriate or compelled by the court decision cited by North Carolina. EPA also considered and responded to the April 22, 2013, letter from Secretary Skvarla in the manner described above. Accordingly, EPA has already given due consideration to the concern raised by North Carolina in its comment regarding the content of the EPA regulations. The Court upheld EPA's response to the State's petition to change the rule. 614 Fed. Appx. at 519.

Thus, the legal issues raised by North Carolina concerning the content of EPA's regulations are settled and not open to reconsideration in this action regarding North Carolina's SIP submittal. For purposes of this action, the PM2.5 increment baseline provisions for SIP-approved state PSD programs set forth in 40 CFR 51.166 are final and effective for all states, including North Carolina. EPA is required to apply its regulations as they are presently written. See, e.g., 78 FR 63883, 63885 (Oct. 25, 2013) (EPA action on the Utah SIP based on the terms of the current version of 40 CFR 51.166). Accordingly, DAQ's comments regarding alleged defects in the PM2.5 increment baseline dates established in the 2010 PSD PM2.5 Rule (including arguments made in attachments to DAQ's comment submission) are not relevant to EPA's determination in this final action of whether the PM2.5 increment provisions in North Carolina's September 5, 2013, SIP submittal are approvable.

To be federally-approvable, North Carolina's PM2.5 increment provisions must meet the requirements of 40 CFR 51.166 unless North Carolina can demonstrate that it has alternative measures in its plan other than PM2.5 increments that satisfy the PSD requirements under sections 166(c) and 166(d) of the CAA. See 40 CFR 51.166(c)(2). Specifically regarding the definitions of key terms set forth at 40 CFR 51.166(b), the regulations state that “[a]ll State plans shall use” these definitions, unless “the State specifically demonstrates that the submitted definition is more stringent, or at least as stringent, in all respects” as the federal definition. See 40 CFR 51.166(b). As EPA explained in the NPRM, North Carolina's PM2.5 increment provisions at 15A NCAC 02D .0530 do not incorporate the federally required definitions of “major source baseline date,” “minor source baseline date,” and “baseline area.” Nor has North Carolina demonstrated—or even claimed—that alternative definitions in the State's plan are more stringent, or at least as stringent, as the federal definitions set forth at 40 CFR 51.166. Likewise, North Carolina has not identified measures in its plan other than PM2.5 increments that satisfy the PSD requirements under sections 166(c) and 166(d) of the CAA and would warrant approval under 40 CFR 51.166(c)(2). DAQ's comments do not refute EPA's determination that North Carolina's PM2.5 increment provisions are not in compliance with 40 CFR 51.166. Therefore, EPA disagrees with DAQ's comment that North Carolina's rules can be approved into the SIP as written.

In this rule, EPA is including in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is incorporating by reference portions of North Carolina's regulations 15A NCAC 02D .0530 and 15A NCAC 02D .0531, entitled “Prevention of Significant Deterioration” and “Sources in Nonattainment Areas,” effective September 1, 2013. Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update to the SIP compilation.5 EPA has made, and will continue to make, these materials generally available through www.regulations.gov and/or at the EPA Region 4 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

EPA is approving, in part, and disapproving, in part, changes to the North Carolina SIP provided by the DAQ to EPA on May 16, 2011, (two submittals) and September 5, 2013. These changes modify North Carolina's NSR permitting regulations codified at 15A 02D .0530—Prevention of Significant Deterioration and 15A NCAC 02D.0531—Sources in Nonattainment Areas, and include the adoption of some federal requirements respecting implementation of the PM2.5 NAAQS through the NSR permitting program. Specifically, EPA is approving the State's changes as they relate to the requirements to comply with EPA's 2008 NSR PM2.5 Implementation Rule (provided in the first May 16, 2011, SIP submittal and the September 5, 2013, SIP submittal) and the State's miscellaneous changes as described in Section III.C. of the NPRM (provided in the second May 16, 2011, SIP submittal and the September 5, 2013, SIP submittal). EPA is disapproving North Carolina's September 5, 2013, SIP submittal as it relates to the requirements to comply with EPA's 2010 PSD PM2.5 Rule. The versions of 15A NCAC 02D .0530 (PSD) and 15A NCAC 02D .0531 (NNSR) that became effective in the State on September 1, 2013, will be incorporated into North Carolina's SIP, with the exception of the portions of paragraphs 15A NCAC 02D .0530(e), (q), and (v) that pertain to PM2.5 increments. EPA is approving the portions of paragraphs 15A NCAC 02D .0530(e), (q), and (v) that pertain to PM10.6 As a result of the disapproval of a portion of the State's NSR requirements, EPA also is disapproving the PSD elements of the North Carolina's infrastructure SIP submittals for the 2008 lead, 2008 8-hour ozone, 2010 SO2, 2010 NO2 and the 2012 PM2.5 NAAQS; and is converting the Agency's previous conditional approvals of the PSD elements of North Carolina's infrastructure SIP submittals for the 1997 Annual PM2.5 and 2006 24-hour PM2.5 NAAQS to partial approvals and partial disapprovals.

North Carolina did not submit its PM2.5 increment provisions or its infrastructure SIPs to meet requirements for Part D of the CAA or a SIP call; therefore, EPA's final action to disapprove North Carolina's PM2.5 increment provisions and to partially disapprove the PSD portions of the State's infrastructure SIP submittals does not trigger sanctions. However, this final disapproval action does trigger the requirement under section 110(c) for EPA to promulgate a FIP no later than two years from the date of the disapproval unless the State corrects the deficiency through a SIP revision and EPA approves the SIP revision before EPA promulgates such a FIP.7

Under the CAA, the Administrator is required to approve a SIP submittal that complies with the provisions of the Act and applicable federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submittals, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. This action approves, in part, and disapproves, in part, state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. EPA is determining that the PSD portion of some of the aforementioned SIP submittals do not meet federal requirements. For that reason, this action:

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

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

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

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

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

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

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

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

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

The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

40 CFR part 52 is amended as follows:

Acronyms and Abbreviations. A number of acronyms and abbreviations are used in this preamble. While this may not be an exhaustive list, to ease the reading of this preamble and for reference purposes, the following terms and acronyms are defined as follows:

Organization of This Document. The following outline is provided to aid in locating information in this preamble.

Categories and entities potentially affected by this reconsideration action include those listed in Table 1 of this preamble.

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

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of 40 CFR part 180 through the Government 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-2016-0283 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 November 14, 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-2016-0283, 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 July 20, 2016 (81 FR 47151) (FRL-9948-45), EPA issued a document pursuant to FFDCA section 408, 21 U.S.C. 346a, announcing the receipt of a pesticide petition (PP IN-10935) filed by OMC Ag Consulting (828 Tanglewood Lane, East Lansing, MI 48823) on behalf of Vive Crop Protection, Inc. (700 Bay Street, Suite 1100, Toronto, Ontario, Canada M5G-1Z6). The petition requested that the exemption from the requirement of a tolerance for residues of acrylic polymers composed of one or more of the following monomers: Acrylic acid, butyl acrylate, butyl methacrylate, carboxyethyl acrylate, ethyl acrylate, ethyl methacrylate, hydroxybutyl acrylate, hydroxybutyl methacrylate, hydroxyethyl acrylate, hydroxyethyl methacrylate, hydroxypropyl acrylate, hydroxypropyl methacrylate, isobutyl methacrylate, lauryl methacrylate, methacrylic acid, methyl acrylate, methyl methacrylate and stearyl methacrylate; with none and/or one or more of the following monomers: Acrylamide, diethyl maleate, dioctyl maleate, maleic acid, maleic anhydride, monoethyl maleate, monooctyl maleate, N-methyl acrylamide, N,N-dimethyl acrylamide, N-octylacrylamide; and their corresponding ammonium, isopropylamine, monoethanolamine, potassium, sodium triethylamine, and/or triethanolamine salts; the resulting polymer having a minimum number average molecular weight (in amu), 1,200 when used as a pesticide inert ingredient in pesticide formulations under 40 CFR 180.960 be amended to include the monomers lauryl acrylate and acrylamidopropyl methyl sulfonic acid. That document included a summary of the petition prepared by the petitioner and solicited comments on the petitioner's request. The Agency did not receive any comments.

Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and use 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 an exemption from the requirement of 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 . . . ” and specifies factors EPA is to consider in establishing an exemption.

EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be shown 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(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness and reliability and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. In the case of certain chemical substances that are defined as polymers, the Agency has established a set of criteria to identify categories of polymers expected to present minimal or no risk. The definition of a polymer is given in 40 CFR 723.250(b) and the exclusion criteria for identifying these low-risk polymers are described in 40 CFR 723.250(d). Acrylic polymers composed of monomers listed in Unit II conforms to the definition of a polymer given in 40 CFR 723.250(b) and meets the following criteria that are used to identify low-risk polymers.

1. The polymer is not a cationic polymer nor is it reasonably anticipated to become a cationic polymer in a natural aquatic environment.

2. The polymer does contain as an integral part of its composition the atomic elements carbon, hydrogen, and oxygen.

3. The polymer does not contain as an integral part of its composition, except as impurities, any element other than those listed in 40 CFR 723.250(d)(2)(ii).

4. The polymer is neither designed nor can it be reasonably anticipated to substantially degrade, decompose, or depolymerize.

5. The polymer is manufactured or imported from monomers and/or reactants that are already included on the TSCA Chemical Substance Inventory or manufactured under an applicable TSCA section 5 exemption.

6. The polymer is not a water absorbing polymer with a number average molecular weight (MW) greater than or equal to 10,000 daltons.

Additionally, the polymer also meets as required the following exemption criteria specified in 40 CFR 723.250(e).

7. The polymer's minimum number average MW of 1,200 is greater than or equal to 10,000 daltons. The polymer contains less than 10% oligomeric material below MW 500 and less than 25% oligomeric material below MW 1,000.

Thus, acrylic polymers composed of monomers listed in Unit II meets the criteria for a polymer to be considered low risk under 40 CFR 723.250. Based on its conformance to the criteria in this unit, no mammalian toxicity is anticipated from dietary, inhalation, or dermal exposure to acrylic polymers.

For the purposes of assessing potential exposure under this exemption, EPA considered that acrylate polymers could be present in all raw and processed agricultural commodities and drinking water, and that non-occupational non-dietary exposure was possible. The minimum number average MW of acrylic polymers is 1,200 daltons. Generally, a polymer of this size would be poorly absorbed through the intact gastrointestinal tract or through intact human skin. Since acrylic polymers conform to the criteria that identify a low-risk polymer, there are no concerns for risks associated with any potential exposure scenarios that are reasonably foreseeable. The Agency has determined that a tolerance is not necessary to protect the public health.

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 acrylic polymers to share a common mechanism of toxicity with any other substances, and acrylic polymers does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that acrylic polymers 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.

Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base unless EPA concludes that a different margin of safety will be safe for infants and children. Due to the expected low toxicity of acrylic polymers, EPA has not used a safety factor analysis to assess the risk. For the same reasons the additional tenfold safety factor is unnecessary.

Based on the conformance to the criteria used to identify a low-risk polymer, EPA concludes that there is a reasonable certainty of no harm to the U.S. population, including infants and children, from aggregate exposure to residues of acrylic polymers.

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.

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

The Codex has not established a MRL for acrylic polymers.

Accordingly, EPA finds that exempting residues of acrylic polymers from the requirement of a tolerance will be safe.

This action establishes 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 tolerance 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:

In FR Doc. 2016-19450 published in the Federal Register at 81 FR 55148, August 18, 2016, make the following correction:

On page 55148, in the first column, third line of the header, remove “41 CFR part 74” and add “41 CFR part 102-74” in its place.

A. Background

GSA published a proposed rule in the Federal Register on January 8, 2016 (81 FR 883). The rule proposed to amend the FTR by expanding the definition of “incidental expenses” (IE) to include ATM fees. Additionally, the rule proposed to amend the FTR by clarifying that agencies have discretion regarding the reimbursement of expenses related to laundry, cleaning, and pressing of clothing for official travel within CONUS that involves four or more consecutive nights of lodging.

The public had 60 calendar days to comment on the proposed rule. GSA received 22 comments from 19 respondents. Two respondents opposed the amendment in general, eleven addressed only the inclusion of ATM fees in the definition of IE, two addressed only the clarification concerning the final approval authority for the reimbursement for laundry, cleaning, and pressing of clothing expenses, three addressed both the proposed IE definition change and the laundry reimbursement clarification (which have been broken out separately below for ease of response), and one was out of scope. Some of these comments resulted in changes to this final rule.

The two comments that opposed the amendment in general are summarized below:

Comment: If travel is required to do mission related duties, how can there be a cap on the travel related expenses? The employee should not have to pay out of pocket to do their job.

Comment: As a government engineer, I am already paid less than my private industry counterparts and now it appears that I am expected to pay my own travel expenses as well.

Response: The final rule changes will have a minimal impact on employee reimbursements for official travel. When necessary to fairly compensate travelers, agencies will retain the discretion to authorize the reimbursement for the cost of ATM fees and/or the cost for laundry, cleaning, and pressing of clothing services while employees are on official travel within CONUS for four or more consecutive nights.

The fourteen comments concerning ATM fees being included in the definition of IE are summarized below:

Comment: Proposing to change ATM fees to incidental expenses as part of per diem is patently unfair to Federal employees. You would be forcing employees ordered to travel (many times against the will or convenience of employees) as part of their work duties to subsidize the Federal government's operating costs especially considering the expensive costs of eating at restaurants in many cities.

Comment: An employee conducting official business for the government should not be required to use personal funds to augment travel costs. We do not have control over the fees charged by the banks for using their ATMs and we do not have control over fees for “cash advance” charged by the government credit card issuer.

Comment: This is not a fair assessment to move the expense of ATM fees under the incidental expense included in the M&IE. It would cause the traveler to come out of pocket for official business.

Comment: Moving ATM fees from miscellaneous expenses to incidental expenses means that employees of official travel will have to use per diem funds to pay for ATM fees instead of those available for meals and lodging.

Comment: Employees on short trips will receive insufficient incidental expense reimbursement to reimburse the employee for all ATM fees incurred, thereby requiring the employee to pay for the ATM fees out-of-pocket. The proposal also gives agencies the discretion to determine when an employee will be separately reimbursed for ATM fees even though the fees are part of incidental expense allowance. We believe this will result in a disproportionate increase in administrative time required to determine when ATM fees are payable as miscellaneous expenses when compared to any cost savings realized from the proposed regulatory change.

Comment: Moving the ATM fee from a miscellaneous expense to an incidental expense puts the burden of government travel onto the traveler which shouldn't be allowed. There are times when an employee might be on travel for a week or more and the ATM fee (with the foreign ATM fee and .025 fee of the total amount) would easily exceed the $5 incidental expense allowance. This goes against the precept that it should not cost the employee to conduct government business (travel).

Comment: The $5 limit for incidental expenses will be inadequate to reimburse the actually incurred expenses of employees who use their Citi Travel Cards to obtain cash advances for their TDY. This proposed rule change does not appear to account for these reasonably anticipated costs it will prohibit agencies from reimbursing, to the detriment of employees on TDY.

Comment: My agency has put in place restrictions on how much cash we are able to get from ATMs, despite the fact we are advised in many countries to only use cash and not the credit card due to fraud. In all cases we are assessed an ATM fee in the foreign country and again by the travel card. This proposed regulation may mean I end up eating some or all of these costs on my own.

Comment: I disagree with including ATM services and fees as part of per diem allowance. Our agency has a large number of traveler's that use the ATM to get advanced funds.

Comment: Section 301-12.1 removes ATM fee as a miscellaneous travel expense and does not give agencies discretion to pay ATM fees as a miscellaneous expense. Section 300-70.200(h) implies that an agency or approving official can determine if the ATM fees can be paid as a separate miscellaneous expense, if warranted (e.g., forced gratuity or other incidental expenses, which may exhaust the allowance to cover the cost of ATM fees). Sections 301-12.1 and 300-70.200 are contradictory and need to be revised.

Comment: If GSA wishes to embed the ATM fees inside the incidental expenditures part of the traveler reimbursement, then GSA should do a nation-wide survey on incidental expenses. If GSA is unwilling to update the incidental expenses inside CONUS, then the ATM fees should remain a miscellaneous expense reimbursement, fully reimbursable for federal employees.

Comment: It is unfair to make them pay these mandated fees which will easily exceed the daily incidental rate. Unlike the USA where taxi, bus, and even the smallest restaurants accept travel cards as payment, many international locations require local cash currency for valid travel related expenses. It is unfair to expect employees to pay for the required currency transaction, exchange rate, ATM surcharges and travel card cash advance fees when this entire system was put in place for government convenience and to reduce government costs by eliminating cashiers necessary to dispense foreign travel currency.

Comment: It is not fair that reimbursement for ATM fees for the use of the government card will no longer be a separate miscellaneous item, but will be lumped in with the incidental expenses. The incidental expenses are those that we, as travelers may or may not choose to make. We are required to expend the ATM fees for the use of the government card. This is because we are required by Federal law to use the government travel card (and ONLY the government travel card) when obtaining cash for travel.

Comment: The incidental fees for baggage, porters, etc. are discretionary based on the traveler's decision. ATM fees are not discretionary. A traveler is entitled to a cash advance for MI&E expenses which means incurring an ATM fee.

Response: Based upon these comments, GSA will neither add ATM fees to the definition for “incidental expenses,” nor amend FTR 301-70.200 regarding internal per diem policy, and will continue to list ATM fees as a miscellaneous expense. Agencies will continue to have discretion regarding the reimbursement of ATM fees. In those instances when directly using the Government contractor-issued travel charge card may not be feasible, the amendment to section 301-70.301 mandates agencies to establish policies and procedures governing who will determine if miscellaneous expense reimbursement is appropriate in connection with official travel, to include transaction fees for use of ATMs) when using the Government contractor-issued charge card. If there is a valid reason why the traveler cannot use the Government travel charge for lodging and meals, agencies have the option to fully reimburse travelers for ATM fees. As a result, GSA has updated the language in this final rule based upon these comments.

The five comments that addressed clarification of the policy relating to laundry, cleaning, and pressing of clothing expenses are summarized below:

Comment: I have been involved with DoD travel vouchers and claims for over 30 years and recommend not to authorize laundry and dry cleaning as a reimbursable expense. Leave it as an incidental expense.

Comment: When TDY for more than a week, laundry usually has to be cleaned. While at the home station, most employees own washers and dryers to do their own laundry. Cleaning laundry while TDY is an added expense that would not otherwise exist and therefore should be covered by miscellaneous expenses and not incidentals.

Comment: The change makes the reimbursement for laundry, cleaning and pressing of clothing at the discretion of the agency. This will permit the agency to disallow these expenses entirely.

Comment: We recommend that GSA completely eliminate the reimbursement of laundry, dry cleaning, and pressing of clothing, as these expenses are not a direct consequence of traveling. Employees would incur the same expenses for laundry, dry cleaning, and pressing of clothing at their official duty station if they were not in travel status.

Comment: 301-11.31 needs to include a minimum number of days or proof of expense must be provided. We have no way of proving if the expense actually occurred, except for dry cleaning. If you make this expense more lenient, we will have traveler's claiming laundry for a single overnight stay.

Response: The cost of laundry, cleaning, and pressing of clothing services will continue to be treated as a discretionary, miscellaneous expense. The change in regulatory language is intended to clarify that agencies are responsible for making the final decision with respect to approving this type of expense. Although the FTR stipulates that a TDY trip must be at least four consecutive nights for the traveler to be eligible for reimbursement of laundry and dry cleaning expenses, agencies have the discretion to establish a higher number of minimum nights. Additionally, agencies may choose to deny reimbursement for any laundry, dry cleaning, and clothes pressing expenses. The agency's internal policies should address what the agency will require for the traveler to receive approval for reimbursement for these expenses. This, GSA will not change the language in the amendment based upon these comments.

The following comment was out of scope as it does not pertain to the subject matter of this amendment, and as a result, no change will be made in response:

Comment: With everyone having computers, why is there a need for so much travel? Video conferencing costs a fraction of sending ten people to Los Angeles for a convention.

Based upon the comments received, this final rule does not include ATM fees within the definition of “incidental expenses,” but rather leaves reimbursement of these expenses as a miscellaneous expense, and further clarifies that reimbursement for these fees is within the agency's discretion.

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

This final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. This final rule is also exempt from the Administrative Procedure Act pursuant to 5 U.S.C. 553(a)(2) because it applies to agency management or personnel.

The Paperwork Reduction Act does not apply because the changes to the FTR do not impose recordkeeping or information collection requirements, or the collection of information from offerors, contractors, or members of the public that require the approval of the Office of Management and Budget (OMB) under 44 U.S.C. 3501, et seq.

This final rule is also exempt from Congressional review prescribed under 5 U.S.C. 801. This final rule is not a major rule under 5 U.S.C. 804.

For the reasons set forth in the preamble, pursuant to 5 U.S.C. 5701-5711, GSA amends 41 CFR parts 301-11 and 301-70 as set forth below:

GSA published a proposed rule in the Federal Register on January 29, 2016 (81 FR 5007). That rule proposed amending the FTR to emphasize the need for agencies to maximize Government contractor-issued travel charge card rebates by increasing the use of the card. Additionally, this rule proposed updating the classes of official travel expenses and employees that are exempt from mandatory use of the Government contractor-issued travel charge card, with the goal of increasing the issuance and appropriate use of the cards by employees on official travel.

The public had 60 calendar days to comment on the proposed rule. GSA received six comments. Four comments applied to the proposed rule; however, one did not fall under the purview of this office, and the other was out-of-scope based upon the subject matter of the final rule. As a result of the applicable comments, GSA made changes to the rule, although these changes are not considered to be significant.

Comment: Proposed paragraph 301-70.700(d) should be revised. It should begin with “If it is not in the interest of the Government to do so . . .”

Response: Upon reflection, GSA determined the proposed amendment to § 301-70.700 to be unnecessary, and therefore, it has been removed.

Comment: Federal agencies cannot verify/enforce that their travelers charge all official travel expenses to the Government travel charge card. As a result of this change in practice, verifying the charge card method of payment has become a more labor intensive/expensive process thus nullifying the benefits derived from generating additional travel charge card rebates.

Response: The purpose of this amendment is to increase the use of the Government contractor-issued travel charge card by limiting the number of exemptions, as opposed to verifying or enforcing that travelers actually use these cards. Section 301-70.700 already requires that employees, unless exempted, use the Government contractor-issued travel charge card for official travel expenses. Agencies should already have an established verification process in place. Thus, GSA will not change the language in the amendment based upon this comment.

Comment: I agree with the changes to § 301-51.2 because it requires more travelers to have and use the Government contractor-issued travel charge card. While §§ 301-70.700, 301-70.701, and 301-70.704 gives the agency a way to exempt employees with poor credit or high delinquency rates.

Response: Respondent is in agreement with the final rule. While GSA removed the proposed amendments to §§ 301-70.700 and 301-70.701 as unnecessary, agencies retain the authority to exempt any payment, person, type or class of payments, or type or class of agency personnel if the exemption is determined to be necessary in the interest of the agency.

Comment: In the FTR proposal, it is written: If an employee is deemed eligible for a Government contractor-issued travel charge card and is expected to travel, the card must be issued and activated within 60 days of the travel charge card eligibility date, as determined by the agency. The proposal does not state any actions to take if the account is not activated within 60 days. Will GSA be writing something in the FTR that will further clarify what actions should be taken if the cardholder does not activate the account within 60 days?

Response: Employees are required to activate the Government contractor-issued travel charge card when received. Agencies should develop internal policy addressing what actions to take if an employee fails to activate the card within 60 days of receipt. GSA has updated sections §§ 301-51.1 and 301-70.708 to address this comment.

Comment: Travel cards for official use can be better managed if bills go to a central office for approval and payment. This will also eliminate the massive misuse of the cards. Additionally, it will take the card holder out of the loop for late fees and potential impact on their credit scores.

Response: This comment is outside the scope of this rule, and as such, no change will be made to the language of the amendment based upon this comment.

Comment: Section 301-12.1 removes ATM fee as a miscellaneous travel expense and does not give agencies discretion to pay ATM fees as a miscellaneous expense. Section 300-70.200(h) implies that an agency or approving official can determine if the ATM fees can be paid as a separate miscellaneous expense, if warranted (e.g., forced gratuity or other incidental expenses, which may exhaust the allowance to cover the cost of ATM fees). Sections 301-12.1 and 300-70.200 are contradictory and need to be revised.

Response: This comment is outside the scope of this rule, and as such, no change will be made to the language of the amendment based upon this comment.

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

This final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. This final rule is also exempt from the Administrative Procedure Act pursuant to 5 U.S.C. 553(a)(2) because it applies to agency management or personnel.

The Paperwork Reduction Act does not apply because the changes to the FTR do not impose recordkeeping or information collection requirements, or the collection of information from offerors, contractors, or members of the public that require the approval of the Office of Management and Budget (OMB) under 44 U.S.C. 3501, et seq.

This final rule is also exempt from Congressional review prescribed under 5 U.S.C. 801. This final rule is not a major rule under 5 U.S.C. 804.

For the reasons set forth in the preamble, pursuant to 5 U.S.C. 5701-5711, GSA amends 41 CFR parts 301-51 and 301-70 as set forth below:

The interim final rule is organized as follows:

Interested persons or organizations are invited to participate in this rulemaking by submitting written views, recommendations, and data. HHS/CDC invites comments on the following questions:

Comments received, including attachments and other supporting materials, are part of the public record and subject to public disclosure. Do not include any information in your comment or supporting materials that you consider confidential or inappropriate for public disclosure. HHS/CDC will consider comments that are received within 60 days of publication of this rule in the Federal Register. After the comment period closes, we will publish another document in the Federal Register. The document will include a discussion of any comments we receive and any amendments that will be made to the rule as a result of the comments.

HHS/CDC is promulgating this rule under the authority of sections 201-204 and 221 of Title II of Public Law 107-188, 116 Stat 637 (42 U.S.C. 262a).

Subtitle A of Title II of the Public Health Security and Bioterrorism Preparedness and Response Act of 2002, (42 U.S.C. 262a), requires HHS to regulate the possession, use, and transfer of biological agents or toxins that the HHS Secretary determines have the potential to pose a severe threat to public health and safety (select agents and toxins). Subtitle B of Title II of the Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (which may be cited as the Agricultural Bioterrorism Protection Act of 2002), (7 U.S.C. 8401), requires the United States Department of Agriculture (USDA) to regulate the possession, use, and transfer of biological agents or toxins that the USDA Secretary determines have the potential to pose a severe threat to animal or plant health, or animal or plant products (select agents and toxins). Accordingly, HHS and USDA have promulgated regulations requiring individuals or entities that possess, use, or transfer select agents and toxins to register with HHS/CDC or USDA/Animal and Plant Health Inspection Service (APHIS). See 42 CFR part 73, 7 CFR part 331, and 9 CFR part 121 (the select agent regulations). The Federal Select Agent Program, a collaboration of HHS/CDC/Division of Select Agents and Toxins and USDA/APHIS/Agriculture Select Agent Services, administers the select agent regulations in a manner that minimizes the administrative burden on persons subject to the select agent regulations. USDA/APHIS is currently considering whether B. cereus Biovar anthracis should also be listed as a USDA select agent.

Emerging B. cereus strains that cause anthrax-like disease have been isolated in Cameroon (CA strain) and Côte d'Ivoire (CI strain). We are currently aware that geographic distribution of B. cereus Biovar anthracis is limited to some African countries, one registered entity in the United States, and one facility in Germany. The B. cereus strain being added to the HHS list of select agents is identified as B. cereus Biovar anthracis and described in the publication “Characterization of Bacillus anthracis-like bacteria isolated from wild great apes from Cote d'Ivoire and Cameroon” (Ref. 3, see table below). Recent research demonstrates that B. cereus Biovar anthracis has all of the virulence determinants and threat potential of Bacillus anthracis, a Tier 1 select agent (Ref. 1). A biovar is a group of microorganisms that are genetically similar but differ from other members of the species by biochemical or genetic characteristics. B. cereus Biovar anthracis was originally isolated about a decade ago from gorillas and chimpanzees exhibiting anthrax-like disease in Cameroon and Cote d'Ivoire (Ref. 3-6). Genomic characterization showed that these organisms belong to the B. cereus species and harbor two plasmids that are referred to as pBCXO1 and pBCXO2. The plasmid (pBCXO1) is very similar to pXO1, which is found in B. anthracis, and encodes active edema and lethal toxins. The plasmid (pBCXO2) is very similar to pXO2, which is found in B. anthracis, and encodes the enzymes that synthesize the poly-D-glutamic acid capsule. Thus, these organisms are genetically similar and produce all of the primary virulence factors (toxins and capsule) of B. anthracis. In addition, pBCXO2 has a functional hasACB operon that encodes a second capsule composed of hyaluronic acid (HA), which enhances the neuro-invasiveness of these organisms in laboratory models of infection (Ref. 1). Accordingly, because we believe that B. cereus Biovar anthracis has the same potential to pose a severe threat to public health as does Bacillus anthracis, currently regulated as a Tier 1 pathogen, we are adding Bacillus cereus Biovar anthracis to HHS select agent list by an interim final rule because we believe that any delay in bringing the possession, use, or transfer into the United States of this pathogen is contrary to the public interest. A biological agent is designated as Tier 1 when it is determined that it presents the greatest risk of deliberate misuse with significant potential for mass casualties or devastating effect to the economy, critical infrastructure, or public confidence, and poses a severe threat to public health and safety. We believe that Bacillus cereus Biovar anthracis presents the same threat to public health and national security as does Bacillus anthracis.

In December 2015, the question of whether B. cereus Biovar anthracis should be regulated as a select agent was considered by HHS/CDC's Intragovernmental Select Agents and Toxins Technical Advisory Committee (ISATTAC). The ISATTAC is comprised of Federal government employees from CDC, the Biomedical Advanced Research and Development Authority (BARDA) within the Office of the Assistant Secretary for Preparedness and Response (ASPR), the National Institutes of Health (NIH), the Food and Drug Administration (FDA), the Department of Homeland Security (DHS), the Department of Defense (DOD), the USDA/Animal and Plant Health Inspection Service (APHIS), USDA/Agricultural Research Service (ARS), and USDA Center for Veterinary Biologics (CVB). Based on the criteria outlined in the Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (42 U.S.C. 262a), the ISATTAC considered the following in their review: The degree of pathogenicity (ability of an organism to cause disease), communicability (ability to spread from infected to susceptible hosts), ease of dissemination, route of exposure, environmental stability, ease of production in the laboratory, ability to genetically manipulate or alter, long-term health effects, untreated acute mortality, available therapeutics and vaccines, status of immunity, vulnerability of special populations, and the burden or impact on the health care system. The ISATTAC also considered whether B. cereus Biovar anthracis should be designated as a Tier 1 select agent. Executive Order 13546, “Optimizing the Security of Biological Select Agents and Toxins in the United States,” defines as “Tier 1” those select agents and toxins that present the greatest risk of deliberate misuse with the most significant potential for mass casualties or devastating effects to the economy, critical infrastructure; or public confidence (Ref. 7). At this time, HHS/CDC is not proposing to regulate other strains of B. cereus that have B. anthracis toxin genes as the data available do not suggest those strains pose a severe threat to public health (Ref. 1 and Ref. 8).

The table below comes from “Bacteriological discrimination characteristics of atypical B. anthracis strains isolated from great apes, classic B. anthracis strains, and other strains of the B. cereus group” (Ref. 3).

After reviewing scientific publications and consulting with subject matter experts, ISATTAC recommended that B. cereus Biovar anthracis should be listed as a HHS select agent and regulated as Tier 1 agent because:

• Genomic characterization showed that B. cereus Biovar anthracis belongs to the B. cereus species, but it harbors virulence-associated plasmids that are similar to B. anthracis, a Tier 1 select agent (Ref. 1-2).

• Fully virulent (pXO1+ pXO2+) strains of B. anthracis are currently regulated as Tier 1 select agent.

• To date, there have been no reports of this biovar having been isolated from humans. However, B. cereus Biovar anthracis exhibited virulence, comparable to B. anthracis in animal models of subcutaneous and intranasal/inhalational anthrax (Ref. 3). Thus, it is reasonable to assume that B. cereus Biovar anthracis can infect humans by the same routes as B. anthracis. In areas (Cameroon and Cote d'Ivoire) where B. cereus Biovar anthracis has been isolated from gorillas and chimpanzees (Ref. 4-6), it is possible that isolates from human cases could be missed due to the lack of laboratory capacity and to the thorough characterization needed to differentiate B. anthracis from B. cereus Biovar anthracis.

• As with B. anthracis, the virulence of this strain as a spore-forming bacterium may make it attractive to those that wish to circumvent the select agent regulations for nefarious purposes.

• PBCXO2—strains of B. cereus Biovar anthracis (analogous to B. anthracis veterinary vaccine Sterne strain) produce a HA capsule from genes present on pBCXO1. Studies have shown such variants (pBCXO2−) are still as virulent as B. anthracis in animal models (Ref. 1).

• There is no apparent difference between this organism and B. anthracis with respect to the criteria used to designate B. anthracis as a Tier 1 agent.

In addition, the Federal Experts Security Advisory Panel (FESAP) provided policy and technical input for the recommendation to list B. cereus Biovar anthracis as an HHS select agent and regulated as Tier 1 agent. The mission of the FESAP is to make technical and substantive recommendations concerning the appropriate safeguards and security standards for persons possessing, using, or transferring BSAT. The goal of the FESAP is that their recommendations be commensurate with the risk that such agents or toxins pose to public health and safety, including the risk of their use in domestic or international terrorism. The FESAP drew from the expertise of its membership, information from presentations by several federal department and agency subject matter experts, and technical input from the Directors of the Federal Select Agent Program (FSAP) to develop its recommendation. The FESAP has issued a draft report that recommended listing B. cereus biovar anthracis as a select agent (not Tier 1).

After consideration of all of the above, HHS/CDC has determined that B. cereus Biovar anthracis should be listed as a Tier 1 HHS select agent given its similarities to B. anthracis, which is consistent with current regulatory requirements for B. anthracis.

Agency rulemaking is governed by section 553 of the Administrative Procedure Act (APA) (5 U.S.C. 553) which, unless the rule falls within one of the exemptions, requires that HHS/CDC publish a notice of proposed rulemaking in the Federal Register that provides interested persons an opportunity to submit written data, views, or arguments. Section 553(b)(B) of the APA authorizes a department or agency to dispense with the prior notice and opportunity for public comment requirement for “good cause” if the department or agency finds that it is contrary to the public interest.

B. cereus Biovar anthracis has all of the virulence characteristics and threat potential of Bacillus anthracis, which is already regulated as a Tier 1 select agent. Accordingly, for the reasons stated above, we have determined that B. cereus Biovar anthracis not only also has the potential to pose a severe threat to public health and safety; but that it may present a great risk for deliberate misuse with a significant potential for mass casualties or devastating effects to the economy, critical infrastructure; or public confidence. We are taking this action to place this agent under the biosafety and security requirements of the select agent regulations; and to regulate its possession and transfer to prevent an accidental release or its misuse. We believe this interim final rule is in the best interest of public health and national security.

Pursuant to 5 U.S.C. 553(b)(3)(B), and for the reasons stated above, we therefore find that there is good cause to dispense with prior public notice and the opportunity to comment on this rule before it becomes effective because any delay in promulgating the rule would be contrary to the public interest.

In researching this addition to the HHS select agents and toxins list, we also considered whether B. cereus Biovar anthracis should be designated as a non-Tier 1 agent. We concluded that B. cereus Biovar anthracis should be regulated as a Tier 1 select agent for the same reason that we currently regulation B. anthracis as a Tier 1 select agent.

HHS/CDC has examined the impacts of this interim final rule (IFR) under Executive Order 12866, Regulatory Planning and Review (58 FR 51735, October 4, 1993) and Executive Order 13563, Improving Regulation and Regulatory Review, (76 FR 3821, January 21, 2011). Both Executive Orders direct agencies to evaluate any rule prior to promulgation to determine the regulatory impact in terms of costs and benefits to United States populations and businesses. Further, together, the two Executive Orders set the following requirements: Quantify costs and benefits where the new regulation creates a change in current practice; define qualitative costs and benefits; choose approaches that maximize benefits; support regulations that protect public health and safety; and minimize the impact of regulation. HHS/CDC has analyzed this IFR as required by these Executive Orders and has determined that it is consistent with the principles set forth in the Executive Orders and the Regulatory Flexibility Act, as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA). We anticipate that the rule will create minimal impact.

This regulatory impact section presents the anticipated costs and benefits that are quantified where possible. Where quantification is not possible, a qualitative discussion is provided of the costs and/or benefits that HHS/CDC anticipates from issuing this regulation.

Bacillus cereus Biovar anthracis is a recently recognized, emerging pathogens that has all the virulence characteristics and threat potential of Bacillus anthracis, a Tier 1 select agent. This organism is not currently on the HHS List of Select Agents and Toxins; we are proposing regulating this organism as a Tier 1 select agent because of its potential for misuse and its threat to public health and safety.

Currently, the only entity in possession of this agent is already registered to possess Tier 1 select agents. As a result, the burden associated with this entity is minimal. However, this rule will also affect entities which plan to possess the agent in the future. We believe that these entities fall into three categories: Entities not currently registered for a select agent or toxin, and entities already registered with the Federal Select Agent Program (FSAP) but not for a Tier 1 agent or toxin, and entities already registered to possess a Tier 1 agent, such as the one already in possession of the agent. Based on the 2012 Select Agent Final Rule, entities already registered with the FSAP but not for a Tier 1 agent or toxin will incur costs of approximately $10,000-$15,000 in order to possess the agent, and median annualized costs to entities not currently registered to possess select agent or toxin are estimated to be approximately $37,000 in order to possess the agent. As noted, for entities already registered to possess a Tier 1 agent, costs are estimated to be minimal. However, we lack data to forecast the number of entities beyond the one entity we are currently aware of that will possess this agent in the future, and as a result we do not estimate the total associated costs.

Benefits: The agents and toxins placed on the HHS selects and toxins list have the potential to pose severe threats to public health and safety. The benefits of the HHS/CDC interim final rule derive from the strengthened prevention against the accidental or intentional release of B. cereus Biovar anthracis. We based the following assumption on the release of B. anthracis that occurred in 2001. The cost of such an event in human life could be high. An outbreak of B. cereus Biovar anthracis also would require a complex and expensive emergency response effort. This effort would include extensive public health measures, such as quarantine, isolation, preventive treatment and health testing for large numbers of potentially exposed persons, and extensive decontamination. Substantial costs would likely be incurred by hospitals and other medical facilities and institutions of government at all levels.

An outbreak of B. cereus Biovar anthracis, or widespread fear of one, also would likely create significant secondary effects to society including a potentially rapid increase in health anxiety among healthy individuals. This may result in overcrowded healthcare facilities and emergency rooms, and the disruption of everyday business operations, transportation, and other normal behavior.

Impacts from the October 2001 anthrax attacks exemplify the costs that the regulatory revisions will help to prevent. The anthrax attacks caused five fatalities and seventeen illnesses, disrupted business and government activities, closed substantial parts of the U.S. Postal Service, and caused widespread apprehension and changes in behavior. Costs included more than $23 million to decontaminate one Senate office building, approximately $2 billion in revenues lost to the postal service, and as much as $3 billion in additional costs to the U.S. Postal Service for cleanup of contamination and procurement of mail-sanitizing equipment (referenced from the Regulatory Impact Analysis from the 2012 Select Agent Regulations Final Rule). There were substantial costs due to lost productivity throughout the economy and investigations into the incident (referenced from the Regulatory Impact Analysis from the 2012 Select Agent Regulations Final Rule).

A deliberate release of B. cereus Biovar anthracis may cause wide-ranging impacts to the economy, potential loss of market access for consumer goods and services, other disruptions to society, and diminished confidence in public and private institutions.

Comparison of Costs and Benefits: In our analysis, we determined that only one entity that already possesses Tier 1 select agents in the United States is in possession of B. cereus Biovar anthracis. As noted above, the cost to the entity would be minimal. Also noted above, this rule will affect entities that plan to possess the agent in the future. Based on the 2012 Select Agent Final Rule, entities already registered with the FSAP but not for a Tier 1 agent or toxin will incur costs of approximately $10,000-$15,000 in order to possess the agent, and median annualized costs to entities not currently registered to possess select agent or toxin are estimated to be approximately $37,000 in order to possess the agent. For entities already registered to possess a Tier 1 agent, costs are estimated to be minimal.

The benefit of regulating this organism is the prevention of an outbreak of disease due to this organism. An analysis of the 2001 anthrax incident shows the impact of the outbreak in terms of loss of life, illness, decontamination costs, and loss of productivity.

Based on this analysis, we believe the benefit of this rulemaking outweighs the costs.

We have examined the impacts of the interim final rule under the Regulatory Flexibility Act (5 U.S.C. 601-612). Unless we certify that the interim final rule is not expected to have a significant economic impact on a substantial number of small entities, the Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA), requires agencies to analyze regulatory options that would minimize any significant economic impact of a rule on small entities. Based on our current knowledge of who possesses B. cereus Biovar anthracis, we certify that this interim final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the RFA.

This regulatory action is not a major rule as defined by Sec. 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This interim final rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in cost 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.

In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), the information collection or recordkeeping requirements included in this rulemaking are currently approved by the Office of Management and Budget (OMB) under OMB control number 0920-0576, expiration date 12/31/2018. This includes the burden on entities to submitted amendments to their registrations.

We expect that the entities who will register for possession, use, or transfer of B. cereus Biovar anthracis will already be registered with the Federal Select Agent Program. This rulemaking will require such an entity to amend its registration with the Federal Select Agent Program using relevant portions of APHIS/CDC Form 1 (Application for Registration for Possessing, Use, and Transfer of Select Agents and Toxins). Estimated time to amend this form is one hour for one select agent. Additionally, any registered entity that wishes to transfer B. cereus Biovar anthracis will be required to submit information using APHIS/CDC Form 2 (Request to Transfer of Select Agent and Toxins). Estimated average time to complete this form is one hour. Based upon the limited publications on this agent at this time, we estimate that only one registered entity may add B. cereus Biovar anthracis to their registration or transfer B. cereus Biovar anthracis to another registered entity. Therefore, we calculate that there is no increase in the number of respondents that need to submit an application for registration, we estimate the total number of responses for entities to submit an amendment to their registration may increase by one, and the total burden hours may increase to one hour.

This rule has been reviewed under E.O. 12988, Civil Justice Reform. Once the interim final rule is in effect, HHS/CDC notes that: (1) All State and local laws and regulations that are inconsistent with this rule will be preempted; (2) no retroactive effect will be given to this rule; and (3) administrative proceedings will not be required before parties may file suit in court challenging this rule.

HHS/CDC has reviewed this interim final rule in accordance with Executive Order 13132 regarding Federalism, and has determined that it does not have “federalism implications.” The rule 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.”

In accordance with section 361(e) of the PHSA [42 U.S.C. 264(e)], nothing in this rule would supersede any provisions of State or local law except to the extent that such a provision conflicts with this rule.

Under the Plain Language Act of 2010 (Pub. L. 111-274, October 13, 2010), executive Departments and Agencies are required to use plain language in documents that explain to the public how to comply with a requirement the Federal Government administers or enforces. HHS/CDC has attempted to use plain language in promulgating this rule consistent with the Federal Plain Writing Act guidelines.

For the reasons stated in the preamble, we are amending 42 CFR part 73 as follows:

I. Background

This interim rule revises the NFS to implement revisions to the voucher submittal and payment process. These revisions are necessary due to section 893 of the National Defense Authorization Act for Fiscal Year 2016 (Pub. L. 114-92) prohibiting DCAA from performing audit work for non-Defense Agencies. Section 893 prohibits DCAA from performing audit work for non-Defense Agencies until DCAA's backlog of incurred cost audits is below 18 months. DCAA's current backlog of cost audits is greater than 18 months. NASA had delegated to DCAA the task of reviewing contractor requests for payment under its cost-type contracts. As a result of section 893, DCAA has ceased cost voucher audit support to NASA, in turn, jeopardizing timely payment to contractors for work performed. NASA has revised its cost voucher submission and payment process to ensure the continued prompt payment to its suppliers. Accordingly, the NFS needs to be immediately revised to implement procedural changes to minimize cost voucher submission and payment delays to NASA suppliers as well the potential accrual of Government interest payments to contractors.

Sections of the NFS are being revised to implement changes to NASA's voucher submission and payment process. Specifically, NASA is—

• Deleting the outdated clause prescription at NFS 1816.307-70(e) and associated clause at NFS 1852.216-87 relating to the submission of vouchers for payment;

• Establishing a new clause prescription at NFS 1832.908-70 and associated clause at 1852.232-80 relative to the submission of vouchers for payment that reflects electronic submittal of vouchers and NASA resources processing these payment requests versus DCAA;

• Deleting NFS section 1842.7101(a) and (b) because DCAA is no longer processing vouchers for NASA; thus this guidance is no longer needed; and

• Deleting NFS section 1842.7101(c) because the requirement of submitting additional hard copies of Standard Form 1034 and Standard Form 1035A to the General Services Administration (GSA) is no longer required. This outdated process is being replaced by electronic submissions.

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

NASA does not expect this interim rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the guidance will not create additional burden to the contractor but rather the rule is intended to update the current voucher submission process at NASA, which will result in fewer voucher rejections, rework, and payment delays. However, an initial regulatory flexibility analysis has been performed and is summarized as follows:

NASA is revising the NFS to implement revisions to the voucher submittal and payment process. These revisions are necessary due to section 893 of the National Defense Authorization Act for Fiscal Year 2016 (Pub. L. 114-92) prohibiting DCAA from performing audit work for non-Defense Agencies.

The objective of this rule is to remove the outdated NFS payment clause and associated prescription relative to the NASA voucher submittal and payment process and replace with a new clause that will revamp NASA's cost voucher submission and payment process to ensure the continued prompt payment to its suppliers. The revision will also minimize cost voucher submission and payment delays to NASA suppliers as well the potential accrual of Government interest payments to contractors.

This rule would apply to contractor requests for payment under cost reimbursement contracts. An analysis of data in the Federal Procurement Data System (FPDS) revealed that cost reimbursement contracts are primarily awarded to large businesses. FPDS data compiled over the past three fiscal years (FY2013 through FY2015) showed an average of 311 active cost reimbursement NASA contracts, of which 141 (approximately 45%) were awarded to small businesses. However, there is no significant economic or administrative cost impact to small or large businesses because the rule will have a positive benefit in the way of fewer voucher rejections, rework, and payment delays. The rule does not contain additional reporting requirements, recordkeeping, or other compliance requirements.

The rule does not duplicate, overlap, or conflict with any other Federal rules. No alternative approaches were considered, because this approach will have minimal impact on small entities.

NASA invites comments from small business concerns and other interested parties on the expected impact of this rule on small entities. NASA will also consider comments from small entities concerning the existing regulations in subparts affected by this rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (NFS Case 2016-N025), in correspondence.

The rule contains information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35); however, these changes to the NFS do not impose additional information collection requirements to the paperwork burden previously approved under OMB Control Number 9000-0070, entitled Payments—FAR Sections Affected: 52.232-1 thru 52.232-4 and 52.232-6 thru 52.232-11.

A determination has been made under the authority of the Administrator of the National Aeronautics and Space Administration that urgent and compelling reasons exist to promulgate this interim rule without prior opportunity for public comment. This action to revise the submission of vouchers for payment process is necessary to avert the rejection of contractor payment requests and potential payment delays, which will result in annual cost avoidance to the Government of approximately $383,000. In addition, we anticipate the Government potentially avoiding approximately $134,000 in late payment interest charges.

Section 893 of the National Defense Authorization Act for Fiscal Year 2016 prohibits the Defense Contract Audit Agency (DCAA) from performing audit work for non-Defense Agencies. NASA had delegated to DCAA the task of reviewing contractor requests for payment under our cost type contracts. This interim rule is needed to ensure that contractors have the correct procedures for submitting vouchers for payment. The existing contract payment clause has submittal of vouchers to DCAA for review, however, DCAA is no longer reviewing and approving contractor payment requests for NASA. Furthermore, if contractors continue to submit payment requests to DCAA, DCAA will reject them causing a delay in contractor payments. In turn, this will cause additional effort for contractors to rework and resubmit the voucher for payment. Immediate implementation of this rule will prevent unnecessary rework and resubmission of payment requests by the contractor and preclude delayed payments resulting in annual cost avoidance of approximately $383,000. This interim rule ensures prompt awareness of and compliance by contractors with the new submission of vouchers procedures. However, pursuant to 41 U.S.C. 1707 and FAR 1.501-3(b), NASA will consider public comments received in response to this interim rule in the formation of the final rule.

Accordingly, 48 CFR parts 1816, 1832, 1842, and 1852 are amended as follows:

NMFS is specifying a catch limit of 2,000 mt of longline-caught bigeye tuna for each U.S. participating territory in 2016. NMFS is also authorizing each U.S. Pacific territory to allocate up to 1,000 mt of its 2,000-mt bigeye tuna limit to U.S. longline fishing vessels permitted to fish under the Pelagic FEP. NMFS will monitor catches of longline-caught bigeye tuna by the longline fisheries of each U.S Pacific territory, including catches made by U.S. longline vessels operating under specified fishing agreements. The criteria that a specified fishing agreement must meet, and the process for attributing longline-caught bigeye tuna, will follow the procedures in 50 CFR 665.819—Territorial catch and fishing effort limits. When NMFS projects that a territorial catch or allocation limit will be reached, NMFS will, as an accountability measure, prohibit the catch and retention of longline-caught bigeye tuna by vessels in the applicable territory (territorial catch limit), and/or vessels in a specified fishing agreement (allocation limit).

You may find additional background information on this action in the preamble to the proposed specifications published on July 7, 2016 (81 FR 44249).

On July 7, 2016, NMFS published the proposed specifications and request for public comments (81 FR 44249); the comment period closed on July 22, 2016. NMFS received five comments on the proposed specifications and on a draft of the SEA dated June 22, 2016, with comments submitted by individuals, the fishing industry, and non-governmental organizations. NMFS considered public comments in finalizing the 2016 SEA and in making its decision on this action. NMFS responds below to comments on the proposed specifications and the July 22, 2016, draft of the SEA.

NMFS responds to comments on the proposed specifications, as follows:

Comment 1: Several commenters expressed general support for the action and the thorough and objective assessment of the potential impacts of the action.

Response: NMFS acknowledges the comments.

Comment 2: One commenter noted the action supports opportunities that promote U.S. fishermen supplying seafood markets, and is consistent with Federal regulations implementing Amendment 7 to the Pelagic FEP and the recent decision of the United States District Court of Hawaii (Conservation Council for Hawaii v. NMFS, NO. CV 14-00528 LEK-RLP, 2015 WL 9459899 (D. Haw. 2015)).

Response: NMFS agrees. In November of 2014, Plaintiffs Conservation Council of Hawaii, Turtle Island Restoration Network, and Center for Biological Diversity, filed a civil action in the U.S. District Court of Hawaii (CA 14-00528) seeking declaratory and injunctive relief to set aside NOAA's October 28, 2014, final rule implementing Amendment 7, and the 2014 bigeye tuna catch and allocation limit specifications (79 FR 64097, October 28, 2014). The final rule established the framework process (50 CFR 665.819) under which the Council may recommend, and NOAA may approve, longline limits for each U.S. Pacific territory. The rule also allows each territory to allocate a portion of the limit to qualifying pelagic permit-holders through specified fishing agreements, consistent with the conservation needs of the stock and applicable Western and Central Pacific Fisheries Commission (WCPFC) decisions. In December 2015, the U.S. District Court of Hawaii upheld the final rule implementing Amendment 7, finding that the final rule was consistent with WCPFC conservation and management decisions, and was not contrary to law.

Consistent with Amendment 7, NMFS will establish a limit of 2,000 mt of bigeye tuna for each U.S. Pacific territory for calendar year 2016. NMFS will also allow each territory to allocate through specified fishing agreements up to 1,000 mt of its 2,000-mt bigeye tuna limit to U.S. fishing vessels permitted under the Pelagic FEP. As documented in the 2015 EA and the 2016 SEA, NMFS is satisfied that this action would not impede WCPFC conservation and management objectives to eliminate overfishing on bigeye tuna. We also anticipate that this action may provide some stability to bigeye tuna markets, some positive economic benefits for the fishery and associated businesses, and net benefits to the Nation.

Comment 3: One commenter expressed concern that the proposed action could be detrimental to the Hawaiian bigeye tuna population because the amount of bigeye tuna removed from Hawaiian waters could potentially increase by 3,000 mt.

Response: Based on the best scientific information available described in Section 3.3.1 of the 2015 EA, NMFS disagrees that this action will result in localized or regional depletion of tuna stocks. Hawaii does not have a distinct bigeye tuna population. Bigeye tuna is a highly migratory species and considered by stock assessment scientists as a single Pacific-wide population. However, the stock is assessed as two separate stocks for international management purposes, with a western and central Pacific Ocean (WCPO) stock managed by the WCPFC and an eastern Pacific Ocean (EPO) stock managed by the Inter-American Tropical Tuna Commission (IATTC).

As described in the 2015 EA, the most recent 2014 WCPO bigeye assessment utilizes a spatially disaggregated MULTIFAN-CL model that separates the WCPO into nine regions. The Hawaiian Archipelago is located mostly in Region 2, with a small portion within Region 4. Regions 2 and 4 share longitudinal boundaries of 170° E. and 150° W., but are latitudinal separated at 20° N. The 2014 WCPO bigeye stock assessment showed that the regions with the highest impact to bigeye tuna in the WCPO were Regions 3 and 4—representing 88 percent of bigeye tuna fishing mortality. Regions 3 and 4 comprise the tropical Equatorial zone between 20° N. and 10° S., within which the area between 10° N. and 10° S. is distinguished as the core Equatorial zone for the tropical tuna longline and purse seine fisheries. The highest levels of purse seine and longline fishing mortality on bigeye tuna occur in this core Equatorial zone.

The majority of fishing effort by the U.S. longline fishery operating out of Hawaii occurs north of 20° N. in Region 2, where fishing mortality for bigeye is much lower than in Regions 3 and 4. Moreover, 98 percent of bigeye tuna caught by this fishery occurs north of 10° N., which is an area outside of the core Equatorial zone. Region 2 also has the highest ratio of exploited spawning biomass to unexploited spawning biomass, meaning that it has the lowest level of depletion because of fishing pressure.

Fishing by Hawaii longline vessels occurs principally in Regions 2 and 4, and the stochastic projections shown in Section 4 of the 2015 EA indicate that, compared to no action, the impact of transferring up to 3,000 mt of bigeye tuna from a U.S. territory to Hawaii longline vessels would result in a 2.5 percent change to the ratio of bigeye fishing mortality (F) to fishing mortality at MSY (FMSY). Specifically, the analysis in the 2015 EA predicts an end to overfishing of bigeye by 2032 (F2032/FMSY = 0.93) for the alternative under which NMFS would not allow any U.S. territory to allocate any tuna to Hawaii longline vessels. Assuming the maximum utilization of territorial bigeye tuna limits and associated allocation limits under this action, F2032/FMSY increases slightly to 1.007. This mortality rate is associated with a 55 percent probability of overfishing and is virtually indistinguishable from the overfishing threshold of F/FMSY >1.0. Under this action, median total biomass (B) would be B2032/BMSY = 1.510 indicating that biomass would be above the level of biomass that produces MSY, and is associated with a zero percent probability of overfishing. Taken together, the analysis indicates that the full utilization of territorial limits, including the transfer of up to 3,000 mt of bigeye tuna under specified fishing arrangements, would have a negligible effect on the overall stock status of bigeye tuna, and would not impede WCPFC conservation measures to eliminate bigeye overfishing in the WCPO.

NMFS responds to comments on the draft SEA dated June 22, 2016, as follows:

Comment 1: Two commenters questioned whether the best scientific information available supports Senator Schatz's proposal to expand the Papahanaumokuakea Marine National Monument (PMNM). The commenters questioned whether the proposed expansion would positively benefit target and non-target fish stocks, promote productive fisheries outside the PMNM, and combat climate change. The commenters noted that the PMNM expansion is a foreseeable future action that is reasonably expected to occur, and requested that NMFS evaluate the potential direct and cumulative effects of the proposed expansion on Hawaii pelagic fisheries, and living marine resources, including coral reefs, bigeye tuna, other highly migratory fish stocks, sea turtles, sea birds, and marine mammals.

Response: On August 26, 2016, shortly before publication of this final specification, President Barack Obama issued Presidential Proclamation 9478 (August 26, 2016, 81 FR 60225), expanding the PMNM to the full extent of the U.S. Exclusive Economic Zone around the Northwestern Hawaiian Islands west of 163° W. The Proclamation establishes the PMNM Expansion for the protection of the objects within its boundaries.

That Presidential action is separate from and is not a part of the current action, which specifies a 2016 catch limit for longline-caught bigeye tuna for participating territories and allows each territory to allocate a portion of that annual catch to U.S. longline fishing vessels. The National Environmental Policy Act requires Federal agencies to consider an action's cumulative effects, together with past, present, and reasonably foreseeable Federal, state, and private actions. The commenters do not specify what impacts the Proclamation might have that they believe should be considered in a cumulative effects analysis for the 2016 bigeye tuna final specifications.

The specification of territorial longline bigeye tuna catch and allocation limits is an action of limited duration that will conclude at the end of 2016. The Proclamation has just occurred, and thus there is no evident useful information about the protections it affords that is available to inform a cumulative effects analysis. Further, in light of the short-term nature of the current action, the prohibition on commercial fishing in the recent Proclamation is not likely to have a cumulative effect on the availability or quantity of tuna that provides the basis for the 2016 specifications. NMFS has added a new section to this effect in the 2016 SEA (Section 2.5.4, Papahanaumokuakea Marine National Monument Expansion).

Comment 2: One commenter questioned the scientific basis for expanding the PMNM, and noted that if the proposal has been peer reviewed, NMFS should also be evaluating the effects of the Rose Atoll, Mariana Trench, and Pacific Remote Islands Marine National Monuments on tuna stocks and other highly migratory species.

Response: Like the recent Proclamation expanding the PMNM, the Presidential Proclamations designating the Rose Atoll (74 FR 1577, January 12, 2009), Mariana Trench (74 FR 1557, January 12, 2009), and Pacific Remote Islands Monuments (74 FR 1565, January 12, 2009; 79 FR 58645, September 29, 2009), and implementing regulations (78 FR 32996, June 2, 2013) are prior Federal actions, and are not part of this action. Therefore, as explained in Section 3.0 (Cumulative Impacts) of the 2016 SEA, there is no new information on any other component of the environment that would affect the cumulative effects analysis contained in the 2015 EA.

The Regional Administrator, NMFS PIR, determined that this action is necessary for the conservation and management of Pacific Island fishery resources, and that it is consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. NMFS published the factual basis for the certification in the proposed rule, and we do not repeat it here. NMFS received no comments on this certification; as a result, a regulatory flexibility analysis is not required, and none has been prepared.

On December 29, 2015, NMFS issued a final rule establishing a small business size standard of $11 million in annual gross receipts for all businesses primarily engaged in the commercial fishing industry (NAICS 11411) for Regulatory Flexibility Act (RFA) compliance purposes only (80 FR 81194, December 29, 2015). The $11 million standard became effective on July 1, 2016, and is to be used in place of the U.S. Small Business Administration's (SBA) current standards of $20.5 million, $5.5 million, and $7.5 million for the finfish (NAICS 114111), shellfish (NAICS 114112), and other marine fishing (NAICS 114119) sectors of the U.S. commercial fishing industry in all NMFS rules subject to the RFA after July 1, 2016.

Pursuant to the RFA and prior to July 1, 2016, NMFS developed a certification for this regulatory action using SBA size standards. NMFS has reviewed the analyses prepared for this regulatory action in light of the new size standard. All of the entities directly regulated by this regulatory action are commercial fishing businesses and were considered small under the SBA size standards and, thus, they all would continue to be considered small under the new standard. Accordingly, NMFS has determined that the new size standard does not affect analyses prepared for this regulatory action.

This rule it is not subject to the 30-day delayed effectiveness provision of the Administrative Procedure Act pursuant to 5 U.S.C. 553(d)(1) because it is a substantive rule that relieves a restriction. This rule allows all U.S. vessels identified in a valid specified fishing agreement to resume fishing in the WCPO after NMFS closed the longline fishery for bigeye tuna both there and in the EPO.

NMFS closed the U.S. pelagic longline fishery for bigeye tuna in the WCPO, on July 22, 2016, because the fishery reached the 2016 catch limit (81 FR 45982, July 15, 2016). On July 25, 2016, NMFS also closed the U.S. pelagic longline fishery for bigeye tuna for vessels greater than 24 m in the EPO because the fishery reached the 2016 catch limit (81 FR 46614, July 18, 2016). This final rule would relieve the restriction of the fishery closure in the WCPO by allowing all U.S. vessels to fish for bigeye tuna in the WCPO under a valid specified fishing agreement with one or more U.S Pacific territory. This would alleviate some of the impacts to the U.S. pelagic longline fishery resulting from the two fishery closures, and may provide positive economic benefits for the fishery and associated businesses, and net benefits to the public and the Nation.

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