Federal Register Vol. 81, No.204,

On December 27, 2010, Executive Order (E.O.) 13562 was signed and established the Internship Program and the Recent Graduates Program, which, along with the Presidential Management Fellows Program, as modified therein, became the Pathways Programs. As directed by the President, the Pathways Programs provides clear paths to Federal internships and potential careers in Government for students and recent graduates. The E.O. also created the Schedule D authority that supports the Pathways Programs by authorizing exceptions to the competitive hiring rules. Under the Schedule D authority, agencies are able, under OPM's guidance, to use excepted service hiring to fill positions from among a particular class of eligible individuals—students and recent graduates.

This final rule updates the FEGLI regulation to change the name of the internship programs under FEGLI rules and provides that employees hired under the Pathways Programs authority may elect to enroll for coverage in FEGLI, if applicable Federal requirements are met. This change was omitted in the OPM final rule (77 FR 28194) issued in 2012 concerning the excepted service internship programs. However, this final rule does not establish new enrollment eligibility for any Pathways Programs interns.

Agencies should continue to refer to the supplementary information published in the aforementioned final rule and the guidance that is on the OPM Web site at: http://www.opm.gov/policy-data-oversight/hiring-authorities/students-recent-graduates/.

We received one comment on the interim final rule relating to agency guidance materials. The sole commenter asked if OPM will issue new guidance to Federal agencies concerning the changed scheduling authority for Pathways Programs participants. In response to the comment, OPM will not issue guidance to Federal agencies based on the changed scheduling authority. The OPM amends this rule to reflect technical changes concerning Pathways Program interns to conform with the final Pathways rule published on May 11, 2012 (77 FR 28194). The technical changes are necessary to reflect that the schedule appointment authority for Pathways Programs interns changed to Schedule D. Lastly, the intern programs were renamed and we needed to change the name in the regulation. See § 870.302(b)(2).

The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration.” The RFA covers a widerange of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.

Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA. I certify that this regulation will not have a significant economic impact on a substantial number of small entities because the regulation only affects life insurance benefits of Federal employees and retirees.

This rule has been reviewed by the Office of Management and Budget in accordance with Executive Order 12866.

We have examined this rule in accordance with Executive Order 13132, Federalism, and have determined that this rule will not have any negative impact on the rights, roles and responsibilities of State, local, or tribal governments.

Accordingly, OPM is amending 5 CFR part 870 as follows:

FSA makes and services a variety of direct and guaranteed loans to the nation's farmers and ranchers who are unable to obtain private commercial credit at reasonable rates and terms. FSA also provides direct loan customers with credit counseling and supervision to enhance their opportunity for success. FSA direct and guaranteed loan applicants are often beginning farmers and socially disadvantaged farmers who do not qualify for conventional loans because of insufficient net worth or established farmers who have suffered financial setbacks due to natural disasters or economic downturns. FSA tailors direct and guaranteed loans to a customer's needs and may be used to buy farmland and to finance agricultural production.

The Consolidated Farm and Rural Development Act of 1972 (CONACT, Pub. L. 92-419), as amended, authorizes FSA's Guaranteed Farm Loan Programs.

FSA is amending its FLP regulations to add an EZ Guarantee Program to further assist the financing needs of small farm operations. Section 333A(g)(1)(A) of the CONACT states that FSA will provide lenders with a short, simplified application for loans which are $125,000 or less (see 7 U.S.C. 1983a(g)(1)(A)). The EZ Guarantee Program process will be the same as the Guaranteed Loan Program, except there is a new, self-contained application specifically formatted for EZ Guarantee loans. FSA may request additional information for the application when necessary to clarify a response on the application before making an approval decision.

FSA is adding a definition of an EZ Guarantee loan in 7 CFR 761.2. The EZ Guarantee Program will provide alternatives for application and financial underwriting process for Operating Loan (OL) and Farm Ownership loan (FO) purposes. All other FLP rules will remain unchanged and the funding sources for these EZ Guarantee loans will continue to be through FSA's guaranteed OL and FO annual appropriations.

All lenders who meet FSA eligibility criteria (see 7 CFR 762.105, 762.106, and 762.107) will be eligible to originate EZ Guarantee loans. As discussed below, the rule adds MLP Status in addition to Standard Eligible Lender (SEL), Certified Lender Program (CLP), and Preferred Lender Program (PLP) status. SELs, CLPs, and PLPs may originate EZ Guarantee loans up to $100,000. Because of their limited experience in making agricultural loans, MLPs will be limited to loans up to $50,000. The streamlined application and new underwriting process will reduce the burden for all of the FSA lender types. Beyond that, we expect that this new EZ Guarantee Program may be of particular interest to and used primarily by small commercial lenders desiring to build their agriculture portfolio and by nontraditional lenders who typically work with small farm operations.

EZ Guarantee loans will be subject to the same eligibility, security, and environmental requirements, as any other guaranteed OL or FO. Loan purposes, interest rate requirements, loan terms, appraisal requirements, and percent guarantee, and guarantee fees will also remain the same. Therefore, §§ 762.120 through 762.124 and 762.126 through 762.127 are not being revised.

Because small loans present less credit risk, and lenders are less inclined to finance small loans, FSA is revising § 762.110 to reflect a new, all-inclusive application form to be used only for EZ Guarantee loans. Unlike other guaranteed applications, lenders will not need to submit supporting information to FSA; therefore, the approval process will require significantly less time. In addition, the application format is different from the application forms now being used by FSA guaranteed lenders. The EZ Guarantee application will include a series of questions that pertain to eligibility, loan repayment prospects, collateral, and environmental review, which if appropriate, will allow for an accelerated FSA approval. An application not qualifying for the accelerated FSA approval will not necessarily be rejected, but instead will require additional information. This rule also makes additional changes to § 762.110 for clarity, but the rules for regular guaranteed applications remain the same.

As part of streamlining the application process, FSA is revising § 762.125 to use a more streamlined underwriting process for EZ Guarantee loans. Because of the limited income derived from a small loan, commercial lenders typically perform very limited financial analysis at loan origination. With the EZ Guarantee Program, the lender may analyze the loan in the same manner they would analyze a nonguaranteed loan of the same size and type, saving them time and money. Many lenders are now using historical averages, industry standards, or scorecard lending rather than projecting cash flow budgets to determine feasibility. Scorecard lending is an underwriting method where lenders use a variety of financial ratios and other information to predict the level of credit risk a particular applicant presents. Lenders will be required to analyze an EZ Guarantee application and determine that the applicant demonstrated reasonable prospects for repayment using normal, industry accepted methods and criteria. As part of the lender's information added to the application, the lender will describe the method and standards used on the EZ Guarantee application.

The lender's standards need to meet the following requirements:

1. The lender must perform the same financial analysis and apply the same underwriting standards for an EZ Guarantee loan as they would for a nonguaranteed loan of the same size and type.

2. The lender must determine that the EZ Guarantee applicant demonstrates reasonable prospects to repay the requested loan. This determination must be arrived at using the lender's typical underwriting criteria and methods, such as a cash flow projection, a scorecard underwriting model, historical income and expenses, or other repayment capacity indicator.

3. The lender will describe the methods and criteria used to determine the applicant's prospects for repayment on the EZ Guarantee application form.

FSA anticipates changes in accepted lending practices, portfolio performance, and economic conditions will create a need to update the EZ Guarantee underwriting criteria; therefore, § 762.125(d) specifies that the standards will be updated for future changes through an FSA announcement posted on the FSA Web site (www.fsa.usda.gov). That will allow for timely updating of the standards as needs change.

Since lenders will continue to analyze and document EZ Guarantee loans using the same methods and standards they use for nonguaranteed loans, FSA anticipates little to no change in default rates resulting from the limited underwriting analysis.

FSA will service EZ Guarantee loans as it currently services guaranteed OLs and FOs with exceptions for term loans performing according to the promissory notes and loan agreements. The lender will be responsible for servicing the entire loan in a reasonable and prudent manner, protecting and accounting for collateral; and the lender will also remain as the mortgagee or secured party of record. The lender will be responsible for servicing its guaranteed loans as it services any other loan in its portfolio and complying with all FLP requirements in 7 CFR 762.140 through 762.149. The reporting requirements will be the current reporting requirements in 7 CFR 761.141 including semi-annual status and default status reporting.

FSA is revising 7 CFR 762.140 for more limited analysis of borrowers with EZ Guarantee loans. If the loan is performing as intended, an annual analysis may not be required. All delinquent servicing lender responsibilities in 7 CFR 762.143 will remain the same.

FSA will administer MLP to increase collaboration with nontraditional lenders and assist small farm operations typically in underserved areas. The additional MLP Status will also enable nontraditional lenders to participate in the EZ Guarantee Program. Also, establishing a stronger working relationship with nontraditional lenders will be beneficial because they share a common goal with FSA to assist producers in underserved areas, including credit deserts such as Indian Country.

Minor reference changes in the rules are being made in §§ 761.2, 762.101, and 762.128. In § 761.2, an abbreviation of “Micro Lender Program” is being added. In § 762.101, “Micro Lender” is being added to the lender classification. In § 762.128, “MLP” is being added to the list of lenders who must comply with the environmental requirements.

Also, this rule adds § 762.107 to implement MLP including the creation of an additional MLP Status for nontraditional lenders and commercial lenders who are not eligible for or do not want Standard Eligible Lender (SEL), Certified Lender Program (CLP), or Preferred Lender Program (PLP) status. To request MLP Status, a lender will submit an application form to any FSA office. The application form will collect information from the lender, such as loan portfolio characteristics (delinquency and default rates), source(s) of loan funding, and certifications by the lender.

FSA will evaluate the MLP Status application using the criteria in 7 CFR 762.107(b).

FSA regulations require guaranteed lenders to be subject to credit examination and supervision by an acceptable State or Federal regulatory agency (see 7 CFR 762.105(b)). This requirement has prevented many nontraditional lenders from qualifying to receive FSA Guarantees on loans made to their customers. MLP Status will allow nontraditional lenders to participate in FSA's EZ Guarantee Program by permitting this examination and supervision to be performed by other types of regulatory agencies. In the new § 762.107(b)(3), FSA requires lenders to be subject to appropriate oversight to participate in the FSA Guaranteed Program as micro lenders. Nontraditional lenders such as Community Development Financial Institutions (CDFIs) are supervised and regulated, but not to the same degree that agencies like the Office of the Comptroller of the Currency or other banking authorities regulate commercial banks. The following types of organizations have currently been determined to meet these standards:

1. A lender meeting the examination and supervision requirement in § 762.105(b).

2. CDFI. CDFIs that have been awarded funds and are under the supervision of the CDFIs Program described in 12 CFR part 1805.

3. Rural Rehabilitation Corporation (RRC). RRCs that have entered into an agreement establishing an ongoing reporting and credit supervision relationship with FSA.

Traditional lenders, such as banks or credit unions, that are currently not eligible to obtain SEL, CLP or PLP status, would be eligible to apply for MLP status. Additionally nontraditional lenders that are certified by the U.S. Department of the Treasury—such as CDFIs—or that are subject to credit examination and supervision by FSA's Deputy Administrator for FLP (DAFLP)—such as RRCs—would be eligible to apply for MLP Status because:

1. FSA has experience in working with CDFIs and RRCs. In addition, CDFIs and RRCs typically make loans to small farms and underserved farmers, and are expected to be one of the primary users of the new EZ Guarantee Program; and

2. At this time, FSA does not have sufficient knowledge or expertise regarding other types of nontraditional lenders. Further research, including the potential need for guarantees by other types of nontraditional lenders is required before allowing these lenders to participate in the EZ Guarantee Program.

FSA expects to allow future expansion of the MLP Status to include other types of nontraditional lenders once further research is conducted; therefore, § 762.107(b)(3) specifies that FSA will announce future modifications to acceptable oversight on the FSA Web site. This will allow FSA to include other lenders as our experience with MLP Status grows.

In addition to the oversight and portfolio performance criteria, FSA also will require the lender to demonstrate experience in making the types of loans they will be requesting FSA to guarantee and the resources to properly make and service these loans, which is very similar to what FSA requires of its other lenders. MLPs lending capabilities may be demonstrated by their experience making and servicing other loans rather than just agricultural loans, as with other FSA guaranteed lenders.

As an objective measure of the capability to make and service loans, FSA is establishing minimum volume and maximum loss rates. These rates will be based on the lender's entire portfolio. In 7 CFR 762.107(b)(3), FSA requires lenders to demonstrate significant positive experience in making and servicing loans. The experience must be that:

1. The lender has originated 20 or more business loans of $50,000 or less; and

2. The lender's losses on all business loans of $50,000 or less made over the past 7 years do not exceed 3 percent.

Again, to allow for timely modification of these rates as circumstances change, FSA may modify these rates by posting rates on the FSA Web site.

Once approved, MLP Status will be valid for 5 years unless revoked by FSA. This is consistent with the timeframe of FSA's CLP and PLP lender status. FSA will also reconsider MLP Status in the event a lender's ownership changes, as is currently done with CLP and PLP lenders.

An MLP Status lender will be bound by all existing terms specified in FSA's Lender's Agreement. It will have the same reporting requirements and be subject to periodic lender review. Unlike FSA's other guaranteed lenders, however, MLP lenders typically have limited experience with agricultural loans and therefore will only be able to underwrite loans up to $50,000 under the EZ Guarantee Program.

FSA is amending the regulations in 7 CFR 761.7(e)(2) to make a technical correction related to chattel appraisal appeals in connection with both guaranteed and direct loans. In the FSA final rule published on November 28, 2013, (78 FR 65523-65541), changes made relative to chattel appraisal appeals specified that the borrower needs to provide an independent appraisal. However, it was the intent of FSA that the borrower provide an independent appraisal review by a person that possesses sufficient experience or training to establish market value of chattel property based on public sales of the same or similar property in the market area, rather than an entirely new appraisal. Therefore, this rule is correcting that error in 7 CFR 761.7(e)(2).

In general, the Administrative Procedure Act (5 U.S.C. 553) requires that a notice of proposed rulemaking be published in the Federal Register and interested persons be given an opportunity to participate in the rulemaking through submission of written data, views, or arguments with or without opportunity for oral presentation, except that when the rule involves a matter relating to public property, loans, grants, benefits, or contracts section 553 does not apply. This rule involved matters relating to loans and is therefore being published as a final rule without the prior opportunity for comments. Although FSA is not required to provide the opportunity for comments on this rule, we are requesting public comments for 90 days to request public input on the changes.

The Administrative Procedure Act (APA, 5 U.S.C. 553) provides generally that before rules are issued by Government agencies, the rule is required to be published in the Federal Register, and the required publication of a substantive rule is to be not less than 30 days before its effective date. However, as noted above, one of the exceptions is that section 553 does not apply to rulemaking that involves a matter relating to loans. Therefore, because this rule relates to loans, the 30-day effective period requirement in section 553 does not apply. This final rule is effective when published in the Federal Register. Most FLP guaranteed loans are established at the beginning of the calendar year; therefore, implementing this rule quickly will benefit beginning and small farms starting in 2016, instead of having to wait for 2017.

Executive Order 12866, “Regulatory Planning and Review,” and Executive Order 13563, “Improving Regulation and Regulatory Review,” direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.

The Office of Management and Budget (OMB) designated this rule as not significant under Executive Order 12866 and, therefore, OMB was not required to review this final rule.

The Regulatory Flexibility Act (5 U.S.C. 601-612), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), generally requires an agency to prepare a regulatory flexibility analysis of any rule whenever an agency is required by APA or any other law to publish a proposed rule, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. This rule is not subject to the Regulatory Flexibility Act because it is exempt from notice and comment rulemaking requirements of the APA and no other law requires that a proposed rule be published for this rulemaking initiative.

The environmental impacts of this rule have been considered in a manner consistent with the provisions of the National Environmental Policy Act (NEPA, 42 U.S.C. 4321-4347), the regulations of the Council on Environmental Quality (40 CFR parts 1500-1508), and the FSA regulations for compliance with NEPA (7 CFR part 799). Through this rule, FSA is establishing the EZ Guarantee Program to provide a guarantee for OLs and FOs up to $100,000, which are expected to be most used by beginning farmers and farmers with small farms (farms with annual gross agricultural products sales from $1,000 to $99,999) with less traditional farm operations who are not typically FSA Guaranteed loan customers. FSA is implementing the MLP Status to allow nontraditional lenders to participate in the EZ Guarantee Program, which is an administrative change. FSA is revising the existing FLP regulations to make those changes, but it is not changing the environmental review requirements that apply. The environmental responsibilities for each prospective applicant will not change from the current process followed for all FLP actions (7 CFR 799). Each EZ Guarantee Program action will be reviewed under the existing process to ensure it will not have a significant impact on the quality of the human environment either individually or cumulatively. Therefore, FSA will not prepare a programmatic environmental assessment or environmental impact statement on this rule.

Executive Order 12372, “Intergovernmental Review of Federal Programs,” requires consultation with State and local officials that would be directly affected by proposed Federal financial assistance. The objectives of the Executive Order are to foster an intergovernmental partnership and a strengthened Federalism, by relying on State and local processes for State and local government coordination and review of proposed Federal Financial assistance and direct Federal development. For reasons specified in the final rule related notice regarding 7 CFR part 3015, subpart V (48 FR 29115, June 24, 1983), the programs and activities within this rule are excluded from the scope of Executive Order 12372.

This rule has been reviewed in accordance with Executive Order 12988, “Civil Justice Reform.” This rule will not preempt State or local laws, regulations, or policies unless they represent an irreconcilable conflict with this rule. The rule does not have retroactive effect. Before any judicial action may be brought regarding the provisions of this rule, the administrative appeal provisions of 7 CFR parts 11 and 780 are to be exhausted.

This rule has been reviewed under Executive Order 13132, “Federalism.” The policies contained in this rule do not have any substantial direct effect on States, on the relationship between the Federal government and the States, or the distribution of power and responsibilities among the various levels of government, except as required by law. Nor will this rule impose substantial direct compliance costs on State and local governments. Therefore, consultation with the States is not required.

This rule has been reviewed in accordance with the requirements of Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments.” Executive Order 13175 requires Federal agencies to consult and coordinate with tribes on a government-to-government basis on policies that have tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and Indian tribes or on the distribution of power and responsibilities between the Federal government and Indian tribes.

FSA has assessed the impact of this rule on Indian tribes and determined that this rule does not, to our knowledge, have tribal implications that require tribal consultation under Executive Order 13175. If a Tribe requests consultation, FSA will work with the USDA Office of Tribal Relations to ensure meaningful consultation is provided.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA, Pub. L. 104-4) requires Federal agencies to assess the effects of their regulatory actions on State, local, or Tribal governments or the private sector. Agencies generally must prepare a written statement, including a cost benefit analysis, for proposed and final rules with Federal mandates that may result in expenditures of $100 million or more in any 1 year for State, local, or Tribal governments, in the aggregate, or to the private sector. UMRA generally requires agencies to consider alternatives and adopt the more cost effective or least burdensome alternative that achieves the objectives of the rule. This rule contains no Federal mandates, as defined in Title II of UMRA, for State, local, or Tribal governments, or private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of UMRA.

In accordance with the Paperwork Reduction Act of 1995, the following new information collection request that supports the EZ Guarantee Program was submitted to OMB for emergency approval and is also being submitted to OMB for the 3-year approval. FSA is requesting comments from interested individuals and organizations on the information collection activities related to the EZ Guarantee application process as described in this rule. FSA is currently modifying the loan application process in order to provide loans to eligible borrowers through the EZ Guarantee process.

After OMB approval of the information collection request, FSA will merge this new information collection request with FSA's approved information collection of the OMB control number 0560-0155.

Title: EZ Guarantee Program.

OMB Control Number: 0560—New.

Type of Request: New Collection.

Abstract: This information collection is required to support the regulation in 7 CFR part 762, “Guaranteed Farm Loans,” which establishes the requirements for most of FSA's guaranteed loan programs and the changes in the rule that add the EZ Guarantee application process, as well as the application for lenders to receive MLP Status. The information collection established in this rule is necessary for FSA to evaluate the applicant's request and determine if eligibility, loan repayment, and security requirements can be met. The application includes information from the borrower and the lender; in general, the lender submits the application to FSA electronically. In addition, the information collection from lenders seeking MLP Status is necessary to ensure they meet the necessary regulatory standards to make and service agricultural loans.

The formulas used to calculate the total burden hours is estimated average time per response hours times total annual burden hours.

The estimated Public Burden for the EZ Guarantee and MLP Status are:

Estimate of Burden: Public reporting for this collection of information is estimated to average 0.46899 hours. The travel time, which is included in the total annual burden, is estimated to be 1 hour per respondent.

Type of Respondents: Individuals or households, businesses or other for profit, and farms.

Estimated Number of Respondents: 6,280.

Estimated Average Number of Responses per Respondent: 1.3.

Estimated Total Annual Number of Responses: 8,160.

Estimated Total Annual Burden on Respondents: 3,827 hours.

We are requesting comments on all aspects of this information collection and to help us:

1. Evaluate whether the collection of information is necessary for the proper performance of the FSA functions, including whether the information will have practical utility;

2. Evaluate the accuracy of FSA's estimate of burden including the validity of the methodology and assumptions used;

3. Enhance the quality, utility, and clarity of the information to be collected; and

4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

All comments received in response to this document, including names and addresses when provided, will be a matter of public record. Comments will be summarized and included in the submission for OMB approval.

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

The title and number of the Federal assistance programs, as found in the Catalog of Federal Domestic Assistance, to which this interim rule would apply are:

10.406 Farm Operating Loans;

10.407 Farm Ownership Loans.

For the reasons discussed above, FSA amends 7 CFR parts 761 and 762 as follows:

Public Participation

Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of the interim rule. U.S. Customs and Border Protection (CBP) also invites comments that relate to the economic, environmental, or federalism effects that might result from this interim rule. Comments that will provide the most assistance to CBP in developing these regulations will reference a specific portion of the interim rule, explain the reason for any recommended change, and include data, information, or authority that support such recommended change. See ADDRESSES above for information on how to submit comments.

On August 22, 2016, U.S. Customs and Border Protection (CBP) published in the Federal Register (81 FR 56477) an Interim Final Rule (CBP Dec. 16-11) that amended the CBP regulations setting forth procedures for CBP to investigate claims of evasion of antidumping and countervailing duty orders in accordance with section 421 of the Trade Facilitation and Trade Enforcement Act of 2015. The document solicited public comments in the interim rule, and requested that submitted comments be received by CBP on or before October 21, 2016.

With the goal of establishing the most effective and transparent procedures as possible for CBP to employ to investigate claims of evasion of antidumping and countervailing duty orders, CBP believes that it is very important to have as much public participation as possible in the formulation of the final rule that establishes those procedures for CBP. Therefore, CBP has decided to allow additional time for the public to submit comments on the final rule. Accordingly, the comment period is extended to December 20, 2016.

The Federal Vacancies Reform Act of 1998, 5 U.S.C. 3345-3349d, provides that, when a Senate-confirmed officer in an Executive agency “dies, resigns, or is otherwise unable to perform the functions and duties of the office,” the First Assistant to that office automatically becomes the acting officer, unless the President designates someone else to perform the functions and duties of the office under 5 U.S.C. 3345(a)(2) or (a)(3). 5 U.S.C. 3345(a)(1). Only individuals performing the functions and duties of a vacant office pursuant to 5 U.S.C. 3345 may use the acting title, because the Act, with exceptions not relevant here, is “the exclusive means for temporarily authorizing an acting official to perform the functions and duties” of an office covered by the Act. 5 U.S.C. 3347. Currently, 28 CFR 0.136, which governs the designation of Acting USAs, is inconsistent with the Act, insofar as it authorizes each USA to designate any AUSA in the office to perform the functions and duties of the USA office and use the title of Acting USA.

The Department's regulations already account for potential USA vacancies under 28 CFR 0.137(b), which provides that each Department office “to which appointment is required to be made by the President with the advice and consent of the Senate (PAS office) shall have a First Assistant within the meaning of the Federal Vacancies Reform Act of 1998,” and “[w]here there is a position of Principal Deputy to the PAS office, the Principal Deputy shall be the First Assistant.” Id. The offices of USAs each have a First Assistant United States Attorney who is considered the Principal Deputy for purposes of § 0.137(b) and, by operation of the Act, automatically becomes the Acting USA when the USA leaves office or is otherwise unable to perform the office's functions or duties, unless the President designates another individual to serve as Acting USA.

This rule is limited to agency organization, management, or personnel matters, and accordingly it is not subject to review under Executive Order 12866, § 3(d) (Sept. 30, 1993).

This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132 (Aug. 4, 1999), the Department has determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988 (Feb. 5, 1996).

This rule is exempt from the rulemaking provisions of 5 U.S.C. 553 because this action pertains to rules of agency organization, procedure, and practice. 5 U.S.C. 553(b)(3)(A). Accordingly, it is not necessary to issue this rule using the notice and public procedure set forth in 5 U.S.C. 553(b), and the requirement of a delayed effective date in 5 U.S.C. 553(d) does not apply.

This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501 et seq.

The Attorney General, in accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), has reviewed this rule and, by approving it, certifies that it will not have a significant economic impact on a substantial number of small entities. The rule removes authority that was inconsistent with the Federal Vacancies Reform Act of 1998.

This action pertains to agency management, personnel, and organization and does not substantially affect the rights or obligations of non-agency parties. Accordingly, it is not a “rule” for purposes of the reporting requirement of 5 U.S.C. 801. See 5 U.S.C. 804(3). Therefore, the reports to Congress and the General Accounting Office are not required.

Accordingly, by virtue of the authority vested in me as Attorney General, including 5 U.S.C. 301 and 28 U.S.C. 509 and 510, Chapter I of Title 28 of the Code of Federal Regulations is amended as follows:

California Department of Transportation has requested a temporary change to the operation of the Tower Drawbridge, mile 59.0, over Sacramento River, at Sacramento, CA. The vertical lift bridge navigation span provides a vertical clearance of 30 feet above Mean High Water in the closed-to-navigation position. The draw operates as required by 33 CFR 117.189(a). Navigation on the waterway is commercial and recreational.

The drawspan will be secured in the closed-to-navigation position from 7:30 a.m. to 11 a.m. on October 23, 2016, to allow the community to participate in the Golden Arches Run event. This temporary deviation has been coordinated with the waterway users. No objections to the proposed temporary deviation were raised.

Vessels able to pass through the bridge in the closed position may do so at anytime. The bridge will not be able to open for emergencies and there is no immediate alternate route for vessels to pass. The Coast Guard will also inform the users of the waterway through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.

Purpose: Section 10 of the AIA (Section 10) authorizes the Director of the USPTO (Director) to set or adjust by rule any fee established, authorized, or charged under the Trademark Act of 1946, 15 U.S.C. 1051 et seq., as amended (the Trademark Act or the Act) for any services performed by, or materials furnished by, the Office. See Section 10 of the AIA, Public Law 112-29, 125 Stat. 284, 316-17. Section 10 prescribes that fees may be set or adjusted only to recover the aggregate estimated costs to the Office for processing, activities, services, and materials relating to trademarks, including administrative costs to the Office with respect to such Trademark and TTAB operations. The Director may set individual fees at, below, or above their respective cost. Section 10 authority includes flexibility to set individual fees in a way that furthers key policy considerations, while taking into account the cost of the respective services. Section 10 also establishes certain procedural requirements for setting or adjusting fee regulations, such as public hearings and input from the Trademark Public Advisory Committee (TPAC) and oversight by Congress. Accordingly, on October 14, 2015, the Director notified the TPAC of the Office's intent to set or adjust trademark fees and submitted a preliminary trademark fee proposal with supporting materials.

The TPAC held a public hearing in Alexandria, Virginia on November 3, 2015 and released its report regarding the preliminary proposed fees on November 30, 2015. The Office considered the comments, advice, and recommendations received from the TPAC and the public in proposing the fees set forth in the notice of proposed rulemaking published in the Federal Register on May 27, 2016, at 81 FR 33619. The proposed rule included links to the preliminary trademark fee proposal and associated materials and to the TPAC report. The Office considered all public comments received during the comment period in the development of this final rule.

The USPTO protects consumers and provides benefits to businesses by effectively and efficiently carrying out the trademark laws of the United States. The final rule will advance key policy considerations, while taking into account the cost of individual services. For example, the increased fees for paper filings aim to better align the required fees with the cost of processing paper filings and incentivize electronic filings to promote efficiency of the registration process. Other trademark fees are increased to encourage timely filings and notices to further promote the efficiency of the process.

The fee schedule implemented in this rulemaking will also continue to recover the aggregate estimated costs to the Office to achieve strategic and operational goals, such as maintaining an operating reserve, implementing measures to maintain trademark pendency and high quality, modernizing the trademark information technology (IT) systems, continuing programs for stakeholder and public outreach, and enhancing operations of the TTAB.

Summary of Major Provisions: The Office herein sets or adjusts 42 trademark processing and service fees. The fee structure increases the per-class fee for an initial application filed on paper by $225 to $600, and increases the fees for 31 other paper filings by between $75 and $200 (per class, where applicable). The per-class fee for an initial application filed using the regular Trademark Electronic Application System (TEAS) option is increased by $75 to $400. This increase also applies to requests for extension of protection and subsequent designations filed under the Madrid Protocol. 15 U.S.C. 1141e; Madrid Protocol Article 8(7)(a). As discussed below, in response to comments regarding requests for extensions of time to file a statement of use filed electronically, the USPTO is reducing the fee for such extensions. In addition, 10 TTAB-related fees are established or revised, six of which differentiate the fees for initiating a proceeding, as filed electronically or on paper, and increase these as compared to the prior undifferentiated fees; and four that establish electronic and paper filing fees for requests to extend time to file a notice of opposition in certain circumstances. A link to a full list of current and final rule fees, including the unit cost by fee from fiscal years 2013, 2014, and 2015, is available at: http://www.uspto.gov/about-us/performance-and-planning/fee-setting-and-adjusting.

Rulemaking Goals and Strategies: This final rule will allow the Office to achieve the dual goals of furthering key policy considerations while continuing to recover prospective aggregate costs of operation. One of the overall objectives of this rulemaking is to set individual fees to further key IP-protection policy considerations while taking into account the cost of the particular service. The Office seeks to enhance trademark protection for IP rights holders by offering application filing options and promoting the Administration's innovation strategies.

This final rule is based on furthering three key policy considerations: (1) To better align fees with full costs; (2) to protect the integrity of the register; and (3) to promote the efficiency of the trademark process.

Better Align Fees with Full Costs: The first fee-setting objective is to set and adjust trademark fees to better align those fees with the full costs of providing the relevant services to achieve aggregate cost recovery. In determining which fees to set or adjust, the Office targeted changes to fees where the gap between the cost of the service and the current fee rate was the greatest. Paper filings are generally more expensive to process than electronic filings. Currently, however, most fees for paper filings are not set at full cost; instead they are subsidized by electronic filers. Because of this, across-the-board increases in fees for paper filings are implemented herein to bring the respective fees closer to the actual cost of processing paper filings and incentivize lower-cost electronic options. Additionally, adjustments to TTAB fees, which have not been adjusted, depending on the fee, for 15-25 years, will bring the fees closer to current processing costs, and new fees for extensions of time to file a notice of opposition will allow recovery of some of the cost of processing these filings.

Protect the Integrity of the Trademark Register: The second fee-setting objective is to set or adjust fees to further the policy objective of protecting the accuracy of the trademark register by incentivizing timely filings and examination, as well as efficient trial and appeal resolutions. These fees are used to encourage actions that help to facilitate efficient processing and encourage the prompt conclusion of application prosecution. An accurate register allows the public to rely on the register to determine potential trademark rights. Filings that may result in a less-accurate register are among those filings targeted under this objective.

Promote the Efficiency of the Trademark Process: The third fee-setting objective pertains to furthering key policy objectives and meeting stakeholder expectations by improving the efficiency of the trademark registration process, and related appeals and trial cases, primarily by incentivizing electronic filings. To reach this objective, the Office targets changes to fees that could administratively improve application processing by encouraging more electronic filing. Electronic filing expedites processing, shortens pendency, minimizes manual processing and the potential for data-entry errors, and is more efficient for both the filer and the USPTO. The Office believes that the increase in fees for paper filings, in conjunction with such prior rulemakings as the TEAS Reduced Fee (TEAS RF) rulemaking that took effect in January 2015 (79 FR 74633 (Dec. 16, 2014)) and increased electronic-filing options at lower rates, will continue to result in a greater percentage of electronic filings, in turn improving the efficiency of the trademark process.

Consistent with the Office's goals and obligations under the AIA, another overall objective of this rulemaking is to ensure the fee schedule continues to generate sufficient revenue to recover the prospective aggregate costs of Trademark and TTAB operations and the associated administrative costs. Fees must be set at levels projected to cover future aggregate costs, which include budgetary requirements and an operating reserve. A record number of over 500,000 classes were filed in fiscal year (FY) 2015, the seventh consecutive year of increased filings, and the Office projects this trend of increased filings to continue for the foreseeable future. Additionally, to maintain trademark pendency and quality goals with the increased filings, the Office must ensure it continues to have adequate resources and IT systems to support future processing and examination requirements. The Office is in the midst of a multi-year IT systems and infrastructure upgrade, which is critical to the future of the U.S. trademark registration system and long sought after by stakeholders.

Maintaining the current fee schedule is unlikely to meet budgetary requirements, including: Full costs associated with the projected increases in filings; the full costs necessary to support Trademark and TTAB operations; and necessary investments in IT systems, intellectual property (IP) policy, and USPTO programs. The USPTO FY 2017 President's Budget was the basis for the initial fee proposal. It includes two revenue estimates based on the projected demand for trademark products and services and fee rates: (1) The current fee schedule; and (2) the initial fee proposal as submitted to the TPAC and discussed in its public hearing and report. It also includes information on estimated aggregate cost that may be found in the USPTO FY 2017 President's Budget (Figure #4, page 23) at http://www.uspto.gov/sites/default/files/documents/fy17pbr.pdf.

The Office notes that because the FY 2017 President's Budget was submitted prior to the USPTO making final decisions on the fee adjustments, and given that the Office reduced several fees from the initial proposal in response to comments from the TPAC and the public, and further reduced fees in response to comments submitted regarding the proposed rule, as discussed herein, the aggregate revenue projected for FY 2017-FY 2021 is higher in that document than the projections for this final rule. Under the fee schedule in this final rule, assuming the same level of budgetary requirements, optimal operating reserves are projected by FY 2021. The USPTO would use its existing authority going forward to adjust fees to cover budgetary requirements and to maintain the optimal operating reserve balance. If the actual operating reserve exceeds the estimated optimal level by 15 percent for two consecutive years, the USPTO would consider lowering fees.

Aggregate costs are estimated through the USPTO budget-formulation process with the annual preparation of a five-year performance-based budget request.

These fee-schedule goals are consistent with strategic goals and objectives detailed in the USPTO 2014-2018 Strategic Plan (Strategic Plan) that is available at: http://www.uspto.gov/sites/default/files/documents/USPTO_2014-2018_Strategic_Plan.pdf. The Strategic Plan defines the USPTO's mission and long-term goals and presents the actions the Office will take to realize those goals. The significant actions the Office describes in the Strategic Plan that are specifically related to the goals of this rulemaking are: Ensuring optimal IT service to all users, maintaining trademark pendency and high quality, continuing and enhancing stakeholder and public outreach, and enhancing operations of the TTAB.

The trademark fee schedule implemented herein will achieve the goals of furthering the key policy considerations of better aligning fees with full costs, protecting the integrity of the register, and promoting the efficiency of the trademark process in FY 2017 and beyond while recovering prospective aggregate costs of operation. It will also create a better and fairer cost-recovery system that balances subsidizing costs to encourage broader usage of IP rights-protection mechanisms and participation by more trademark owners.

The following table shows the current and final fee amounts implemented by this rulemaking for paper-filed applications and documents.

The USPTO published a proposed rule on May 27, 2016 soliciting comments on the proposed fee schedule. In response, the USPTO received comments from four intellectual property organizations and seven individual commenters representing law firms, corporations, and individuals. These comments are posted on the USPTO's Web site at http://www.uspto.gov/trademark/trademark-updates-and-announcements/comments-proposed-rulemaking-relating-trademark-fee.

The Office received comments both generally supporting and objecting to the fee increases. Three commenters objected to any increase in fees, as they believed such increases placed hardships on individual filers and small-business owners. Two of these commenters suggested that fees be maintained at their current levels for these groups and one suggested that the Office consider lowering the fees for individual entrepreneurs, artisans, and crafts people. Alternatively, one commenter expressed support of the Office's goal of incentivizing use of electronic filings, the proposed fee increases on certain paper filings, and the increase of the application fee for the regular TEAS application.

The USPTO appreciates the commenter's support of the objective of incentivizing electronic filing, but it also appreciates the concerns of the commenters regarding the impact of the increased fees on individuals and small-business owners. After review of the comments to the fee proposal, the USPTO is reducing the current fee for electronically filed requests for extensions of time to file a statement of use and the proposed increases for affidavits under sections 8 and 71. Furthermore, the majority of the fee increases are for paper filings. The less-expensive electronic filing method can be used by all types of filers, including small companies and individuals focused on minimizing costs, and the Office's experience is that small companies and individual filers have proven particularly adept at finding and choosing lower-cost filing options.

The USPTO also received public comments expressing concerns with several individual fees. In the interest of providing context to those comments, they are summarized and responded to in the general discussion of the individual fee rationale below.

Individual Fee Rationale: The Office projects the aggregate revenue generated from trademark fees will recover the prospective aggregate cost, including the attainment and maintenance of an adequate operating reserve for its Trademark and TTAB operations. In addition, as described above, some of the fees are set to balance several key policy factors, and executing these policy factors in the trademark fee schedule is consistent with the goals and objectives outlined in the Strategic Plan. Once the key policy factors are considered, fees are set at, above, or below individual cost-recovery levels for the service provided. For more information regarding the cost methodologies used to derive the historical fee unit expenses, please refer to USPTO Fee Setting—Activity Based Information and Trademark Fee Unit Expense Methodology available at: http://www.uspto.gov/about-us/performance-and-planning/fee-setting-and-adjusting.

Fees for Paper Filings: The final rule increases the fees for paper filings in order to meet two objectives: Better align fees with costs and improve the efficiency of the trademark process. The fee for filing a trademark application for registration on paper is increased by $225, from $375 per International Class to $600 per International Class. Additionally, all trademark processing fees for paper filings are increased by $75 to $200 more than current fees (per class, when applicable).

The costs of processing paper filings are generally higher than electronic filings and higher than current fee schedules. A full list of current and new fees including the unit cost by fee from fiscal years 2013, 2014, and 2015 is available in the Table of Trademark Fees—Current, Final Rule and Unit Cost at: http://www.uspto.gov/about-us/performance-and-planning/fee-setting-and-adjusting. An increase in the fees for these filings will help to offset the higher processing costs and come closer to recovering the total processing costs. Furthermore, setting a higher fee for paper filings incentivizes electronic filings, which are more cost efficient for the Office to process and which reduce the possibility of data-entry errors. As a result, adjustments of 5-10% in the estimated number of paper filings have been made in projecting filings and estimating revenue considering the impact of the fee increase on the behavior of applicants and parties to TTAB proceedings and the resulting revenues. The rationale behind this fee increase is consistent with prior fee reductions for electronic filings.

At present, the vast majority of filings are electronic. For example, in FY 2015, only 0.4% of initial applications for registration were filed on paper, increasing the unit costs as filings decrease. Additionally, more than 95% of all fee-paid requests were filed electronically in FY 2015. Thus, the increase in all paper filing fees will have virtually no impact on the vast majority of applicants and registrants who file documents electronically.

Three commenters objected to the amounts of the proposed fee increases for paper filings. The USPTO understands the concerns to keep costs low for all filers. The objections to these fees have been carefully considered. However, some of the amended fees are set to balance several key policy factors, and executing these policy factors in the trademark fee schedule is consistent with the goals and objectives outlined in the Strategic Plan. In addition, given the costs to process paper filings, the USPTO has determined that a fee increase is necessary at this time in order to bring the fees charged closer to the costs of processing the filings. The USPTO encourages the use of electronic filing as a preferred filing method because it is less expensive, with lower processing fees and costs. It is also more efficient, because electronic filing expedites processing by eliminating the need for individual data entry as well as decreasing the potential for data-entry errors. The USPTO provides guidance on using TEAS electronic filing forms on its Web site at http://www.uspto.gov/trademarks-getting-started/trademark-basics/teas-nuts-and-bolts-videos.

Two commenters suggested a waiver of any higher fee for paper filing in situations where electronic filing is unavailable, whether due a system outage or to TEAS limitations regarding the submission of evidence or specimens in video format. One of the commenters also suggested that the difference in fees in such situations be waived by some mechanism other than a petition to the Director.

The USPTO notes that it is currently possible to submit electronic files containing sound or multimedia specimens or evidence directly through TEAS in all initial application forms as well as response forms, allegation-of-use forms, petitions forms, and post-registration maintenance forms. The complete list of forms is available on the USPTO Web site at http://www.uspto.gov/trademarks-application-process/filing-online/trademark-electronic-application-system-teas-1#164074. The USPTO is also enhancing additional forms to permit direct submission of sound or multimedia files on an ongoing basis, with the next enhancement planned for October 2016. Therefore, there are few situations in which a party would be unable to attach an electronic file to a TEAS form. Until such time as all forms accept such attachments, the USPTO has provided a workaround approach for submitting such files via email.

The USPTO makes every effort to have TEAS and the Electronic System for Trademark Trials and Appeals (ESTTA) for trademark and TTAB filings, respectively, available 24 hours a day, 7 days a week. Sometimes, TEAS or ESTTA may be unavailable because of routine maintenance or are unexpectedly inaccessible. In such cases, the USPTO provides information about the outage on its Web site and makes every attempt to restore service as soon as possible. The USPTO also provides information regarding filing documents during an outage at http://www.uspto.gov/trademarks-application-process/filing-online/filing-documents-during-outage. Requests to waive a fee because a document had to be filed on paper due to a system outage or other circumstance are considered on a case-by-case basis. In order to properly assess the circumstances and evidence regarding each request for a fee waiver, the appropriate mechanism is to file a petition to the Director under 37 CFR 2.146.

Other Trademark-Processing Fees: The Office also increases certain other trademark-processing fees in order to further key policy considerations, and reduces one fee. The rule increases the per-class fee for an initial application filed through TEAS from $325 to $400. This fee increase applies to both U.S. and foreign filers as well as to applications submitted under the Madrid Protocol as requests for extension of protection and subsequent designation. The rule also increases the processing fee for failure to meet the requirements for a TEAS Plus or TEAS RF filing from $50 to $125 per International Class to better align the resulting total charge with the fee for filing a regular TEAS application. In addition, the final rule increases the fees for affidavits under sections 8 and 71 of the Act in the amount of $25 per class for electronic filings and $125 per class for paper filings. However, as a result of public comments, the rule reduces the current fee for electronically filing a request for an extension of time to file a statement of use from $150 to $125 per class and reduces the increase for filing such a request on paper to $225, rather than the proposed increase to $250.

Initial Application Filed Through TEAS: The final rule increases the fee for an initial application filed through TEAS as a regular TEAS application in order to better align the fee with the costs and to incentivize subsequent electronic filing and communications. The fee is increased from $325 to $400 to bring the fee closer to the full processing cost of the service. Unlike the TEAS Plus and TEAS RF application options, the regular TEAS application does not require the applicant to commit to communicating electronically with the Office throughout the course of prosecution of the application. Increasing the fee for this application option will encourage applicants to commit to complete electronic processing using one of the lower-cost application options. Corresponding increases to the individual fee for requests for protection of an International Registration through the Madrid Protocol are also affected by invoking the relevant provisions under the Protocol and its Common Regulations to adjust fees at the request of a contracting party.

One commenter stated that the proposed increase of “from $75 a class to $400 a class” for regular TEAS applications is extremely burdensome on small companies and individuals, and suggested reducing the fee to no more than $150 per class. The USPTO appreciates the commenter's concerns regarding the increased price for the regular TEAS application and assumes that the commenter is referring to the $75 increase from the current fee of $325 per class to $400 per class. The USPTO notes that all filers, including small companies and individuals, have less-expensive filing options. Filers seeking lower-cost alternatives may select between the TEAS Plus application, at $225 per class, and the TEAS RF option, which has fewer filing requirements than the TEAS Plus option, at $275 per class. The USPTO has no plans to introduce a lower-cost filing option at this time as these fees are set based on the reasons mentioned above.

On August 23, 2016 (87 FR 57531), EPA published a notice of proposed rulemaking (NPR) for the Commonwealth of Virginia. In the NPR, EPA proposed approval of three revisions to the Virginia SIP concerning the adoption of EPA CTGs for offset lithographic printing and letterpress printing, industrial solvent cleaning operations, miscellaneous industrial adhesives, and miscellaneous metal and plastic parts coatings sources in the specific portion of Virginia known as the Northern Virginia Volatile Organic Compound Emissions Control Area.1 The formal SIP revision was submitted by Virginia, through VADEQ, on February 1, 2016.

The ozone transport region (OTR) was established under section 184(a) of the CAA to address interstate transport of ozone and includes the northern portion of Virginia that is part of the Metropolitan Statistical Area of the District Columbia, which Virginia refers to as the “Northern Virginia Volatile Organic Compound Emissions Control Area.” Pursuant to section 184(b)(1)(B) of the CAA, all areas in the OTR must implement RACT with respect to sources of volatile organic compounds (VOCs) in the state covered by CTGs. Thus, Virginia must implement RACT with respect to sources of VOCs covered by CTGs in the Northern Virginia Volatile Organic Compound Emissions Control Area. CAA section 184(b)(1)(B) and (2). States can follow the CTGs and adopt state regulations to implement the recommendations contained therein, or they can adopt alternative approaches. In either case, states must submit their RACT rules to EPA for review and approval as part of the SIP process.

In 2006 and 2008, EPA published new CTGs entitled Control Techniques Guidelines for Offset Lithographic and Letterpress Printing (Publication No. EPA 453/R-06-002; September 2006); Control Techniques Guidelines for Industrial Cleaning Solvents (Publication No. EPA 453/R-06-001; September 2006); Control Techniques Guidelines for Miscellaneous Industrial Adhesives (Publication No. EPA 453/R-08-005; September 2008); and Control Techniques Guidelines for Miscellaneous Metal and Plastic Parts Coatings (Publication No. EPA 453/R-08-003; September 2008). EPA developed new CTGs for these industries after reviewing existing state and local VOC emission reduction approaches, new source performance standards (NSPS), previously issued CTGs, and national emission standards for hazardous air pollutants (NESHAP) for these source categories.

On February 1, 2016, Virginia, through VADEQ, submitted amended and new regulations for inclusion in the Virginia SIP concerning the adoption of the EPA CTGs for offset lithographic printing and letterpress printing, industrial solvent cleaning operations, miscellaneous industrial adhesives, and miscellaneous metal and plastic parts coatings in the Northern Virginia Volatile Organic Compound Emissions Control Area. Virginia has adopted EPA's CTG standards for these industries by amending regulation 9VAC5, chapter 40, Existing Stationary Sources, articles 34 and 53 and adding articles 56, 56.1, 57, 58, and 59 to 9VAC5, chapter 40. Additionally, Virginia has amended supporting definitions in 9VAC5, chapter 20, General Provisions, which relate to the new CTG standards. The Virginia regulations adopt the equivalent of the specific EPA CTG recommendations and address CAA requirements for RACT (for sources covered by CTGs) in sections 172 and 182 as referenced by section 184. Other specific requirements and the rationale for EPA's proposed action are explained in the NPR and technical support document (TSD) and will not be restated here. No public comments were received on the NPR.

EPA is approving VADEQ's February 1, 2016 SIP submittal as a revision to the Virginia SIP. The SIP submittal being approved consists of amendments to regulation 9VAC5 chapter 40, Existing Stationary Sources, and 9VAC5 chapter 20, General Provisions, and addresses the requirement to adopt RACT for sources located in the Northern Virginia VOC Emissions Control Area covered by EPA's CTG standards in accordance with CAA requirements in sections 172, 182 and 184 for the following categories: Offset lithographic printing and letterpress printing, industrial cleaning solvent operations, miscellaneous industrial adhesives, and miscellaneous metal and plastic parts coatings.

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

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

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

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

In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the VADEQ regulations regarding control of VOC emissions from offset lithographic printing and letterpress printing, industrial solvent cleaning operations, miscellaneous industrial adhesives, and miscellaneous metal and plastic parts coatings in the Northern Virginia Volatile Organic Compound Emissions Control Area as well as related definitions as described in section II of this rulemaking action. 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.2 EPA has made, and will continue to make, these materials generally available through http://www.regulations.gov and/or at the EPA Region III Office (please contact the person identified in the For Further Information Contact section of this preamble for more information).

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

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

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

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

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

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

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

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

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

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

The SIP is not approved to apply on any Indian reservation land as defined in 18 U.S.C. 1151 or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 20, 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 approving RACT rules for sources in northern Virginia may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

40 CFR part 52 is amended as follows:

On July 28, 2016, the EPA proposed to partially approve and partially disapprove the attainment plan submitted by the ODEQ on December 12, 2012 (81 FR 49592). An explanation of the CAA attainment planning requirements, a detailed analysis of the submittal, and the EPA's reasons for proposing partial approval and partial disapproval were provided in the notice of proposed rulemaking, and will not be restated here. The public comment period for the proposed rule ended on August 29, 2016. The EPA received no comments on the proposal.

The EPA is finalizing approval of the following elements of the 2012 SIP submission:

• Description of the Oakridge PM2.5 nonattainment area and listing of the area as nonattainment, and

• The base year 2008 emission inventory submitted to meet the CAA section 172(c)(3) requirement for emissions inventories.

The EPA is finalizing disapproval of the following elements of the 2012 SIP submission:

• The attainment year emission inventory submitted to meet the CAA section 172(c)(3) requirement for emissions inventories,

• the reasonably available control measures (RACM), including reasonably available control technology (RACT), submitted to meet the CAA sections 172(c)(1) and 189(a)(1)(C) requirements for control measures for moderate nonattainment areas,

• the attainment demonstration submitted to meet the CAA section 189(a)(1)(B) requirement for a demonstration that the plan will provide for attainment by the applicable attainment date,

• the motor vehicle emissions budget (MVEB) submitted to meet CAA section 176 requirement for transportation conformity,

• the demonstration of reasonable further progress (RFP) and quantitative milestones submitted to meet section 172(c)(2) and 189(c) requirements for RFP and quantitative milestones, and

• the contingency measures submitted to meet the section 172(c)(9) requirement for the implementation of measures to be undertaken, without further action by the state or EPA, if the area fails to make RFP or attain the NAAQS by the applicable attainment date.

This section explains the consequences of a disapproved SIP submission required under the CAA. The Act provides for the imposition of sanctions and the promulgation of a federal implementation plan (FIP) if a state fails to submit, and the EPA approve, a plan revision that corrects the deficiencies identified by the EPA in its disapproval.

Once the EPA finalizes disapproval of a required SIP submission, such as an attainment plan submission, or a portion thereof, CAA section 179(a) provides for the imposition of sanctions, unless the deficiency is corrected within 18 months of the final rulemaking of disapproval. The first sanction would apply 18 months after the EPA disapproves the SIP submission, or portion thereof. Under the EPA's sanctions regulations at 40 CFR 52.31, the first sanction imposed would be 2:1 offsets for sources subject to the new source review requirements under section 173 of the CAA. If the state has still failed to submit a SIP submission to correct the identified deficiencies for which the EPA proposes full or conditional approval 6 months after the first sanction is imposed, the second sanction will apply. The second sanction is a prohibition on the approval or funding certain highway projects.1

I. Background

In our notice of proposed rulemaking published on August 25, 2016 (81 FR 53438), EPA proposed to approve revisions to Article 33-15 Air Pollution Control rules of the North Dakota Administrative Code submitted by the State of North Dakota on January 28, 2013 and April 22, 2014. In this rulemaking, we are taking final action on revisions submitted in the January 28, 2013 submittal to update the PSD rules; add PM2.5 methods of measurement; revise permit fee processing; remove permitting fees for sources that operate an air monitoring site; and make clarifying changes. The North Dakota State Health Council adopted those amendments on August 14, 2012 (effective January 1, 2013). In addition, we are also taking final action on revisions submitted in the April 22, 2014 submittal to update the PSD rules and the definition of “volatile organic compounds”; revise the PM2.5 state ambient air quality standard and permissible open burning rule; and clarify excess emissions reporting requirements. The North Dakota State Health Council adopted those amendments on February 11, 2014 (effective April 1, 2014). The reasons for our approval are provided in detail in the proposed rule.

We received no comments on our proposed rule.

For the reasons expressed in the proposed rule, EPA is approving revisions to sections of the State's Air Pollution Control rules from the January 28, 2013 and April 22, 214 submittals. A comprehensive summary of the revisions in North Dakota's Air Pollution Control rules organized by the EPA's action, reason for “no action” and submittal date are provided in Table 1 and Table 2 below.

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 North Dakota Air Pollution Control rules described in the amendments set forth to 40 CFR part 52 below. Therefore, these materials have been approved by the EPA for inclusion in the State implementation plan, have been incorporated by reference by the 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 the EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update to the SIP compilation.1 The EPA has made, and will continue to make, these materials generally available through www.regulations.gov and/or at the EPA Region 8 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

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

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, Oct. 4, 1993);

• 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, Aug. 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 the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, Feb. 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. The EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 20, 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 CAA section 307(b)(2).)

40 CFR part 52 is amended to read as follows:

I. Background

In this action, the EPA is approving SIP revisions to Colorado's Regulation No. 11 (hereafter “Reg. No. 11”) contained in three submittals from Colorado. The State's submittals were dated June 11, 2008, March 15, 2013, and March 3, 2014. Much of the content of the revisions involved minor updates to several sections of Reg. No. 11 and deletion of obsolete language. Those revisions of greater significance involved: (1) Colorado's 2007 revisions to Reg. No. 11 for the implementation of the LEI portion of the Clean Screen Program contained in Reg. No. 11; (2) Colorado's 2012 revisions to Reg. No. 11 for the implementation of the OBD test requirements contained in Reg. No. 11 along with the Seven Model Year Emissions Test Exemption provisions; and (3) Colorado's 2013 revisions to Reg. No. 11, Appendix A, Incorporation by Reference of Technical Materials, the addition of new Technical Information/Requirements, and minor revisions to Appendix B.

On August 12, 2016, the EPA published a notice of proposed rulemaking (NPR) which proposed to approve the State's three Reg. No. 11 SIP revision requests and in addition, provided a thorough evaluation of the changes, additions, and deletions to Reg. No. 11 contained in each of the three SIP revision submittals. See 81 FR 53370. The details of Colorado's three SIP submittals and the rationale for the EPA's proposed action to approve the SIP revision materials are explained in the NPR and will not be restated here. The EPA notes that the NPR's public comment period closed on September 12, 2016 and we did not receive any comments.

The EPA is taking final action to approve the following revisions to Reg. No. 11 that were discussed in our August 12, 2016 NPR (81 FR 53370) and as provided below:

a.) The sections of Reg. No. 11 that were revised with the State's June 11, 2008 submittal:

1.) Part A, section II: Modify definition number 15 “Clean Screened Vehicle” to reflect the addition of the LEI; modify definition number 17 “Colorado `94” to clarify the use of the BAR 90 test analyzer systems for use after 1994; and add a new definition “Low Emitting Vehicle Index.” Renumber definitions number 18 and higher.

2.) Part C, section XII: Modify section XIIA.3 regarding the requirements and procedures to clean screen an eligible vehicle and add section XIIE.4 regarding low emitting vehicles and the LEI.

3.) Part F, section VI: Renumber section VI.B as VI.C; add new section VI.B.1 which requires the development of the LEI each year; add new section VI.B.2 which establishes the 98% minimum passing criteria for the LEI; and add new section VI.B.3 which allows the Colorado Department of Public Health and Environment (CDPHE) to use a greater than 98% passing criteria if needed to equate to a second remote sensing device reading.

4.) Appendix A, Technical Specifications, Attachment 1: Sections of Attachment 1 of the Technical Specifications contain the specifications for the PDF 1000 Scanner; some sections were unreadable and a full, retyped PDF 1000 Scanner section was provided.

5.) Appendix A, Technical Specifications, Attachment 2: Sections of Attachment 2 of the Technical Specifications contain the specifications for the Thermal Transfer Printer; some sections were unreadable and a full, retyped Thermal Transfer Printer section was provided.

The EPA notes that Part F, section III.A.2 of Reg. No. 11 was also provided with the State's June 11, 2008 submittal. This section contains IM240 1 test light duty vehicle emissions cutpoints for 1996 and newer vehicles (all in grams per mile). The carbon monoxide (CO), hydrocarbon (HC), and nitrogen oxides (NOX) entries for calendar year 2006 are incorrect as the State had previously provided an August 8, 2006 SIP revision submittal to remove these 2006 cutpoints (i.e., HC 0.6, CO 10.0, and NOX 1.5). The EPA approved the removal of these 2006 cutpoints on December 20, 2012 (77 FR 75388).

I. Background

Stage II vapor recovery is a means of capturing volatile organic compounds (VOCs) emitted as vapors displaced from a vehicle's gas tank during refueling operations, via vapor controls equipped on a gasoline pump at a gasoline dispensing facility (GDF). Stage II vapor recovery uses special refueling nozzles and coaxial hoses on the gasoline dispenser to capture these vapors that might otherwise be emitted to the atmosphere during vehicle fueling. These gasoline vapors contain toxic air emissions and serve as precursors to the formation of ground-level ozone—an ambient air pollutant regulated under the CAA. Under section 182(b)(3) of the CAA, areas classified as moderate or worse ozone nonattainment were required to adopt a Stage II vapor recovery program. Areas in the Ozone Transport Region (OTR) were required under section 184(a) and (b)(2) to adopt Stage II, or a comparable measure that could achieve similar emission reductions.

Virginia has three areas that have approved Stage II SIPs meeting Stage II requirements under the 1990 amendments to the CAA. The Richmond area was designated as moderate nonattainment under the 1-hour ozone NAAQS, and again under the 1997 8-hour ozone NAAQS. On July 26, 1996, Virginia submitted a request to redesignate the Richmond area to attainment of the 1-hour ozone NAAQS. EPA's approval of this request was published in the November 17, 1997 Federal Register (62 FR 61237). On September 26, 2006, Virginia requested redesignation of the Richmond area to attainment for the 1997 8-hour ozone NAAQS. EPA approved that redesignation request in the June 1, 2007 Federal Register (72 FR 30485). However, Virginia's plans for maintenance of the respective NAAQS relied upon the emissions reductions from Stage II as a means to ensure continued maintenance of the ozone NAAQS. Although the 1-hour ozone NAAQS was revoked June 15, 2005, EPA's implementation rule for the 1997 ozone NAAQS retained Stage II as a required measure to prevent backsliding under the NAAQS.

The Virginia portion of the Washington, DC-MD-VA ozone nonattainment area (hereafter referred to as the Washington area) was subject to Stage II not only because of its designation as nonattainment for the ozone NAAQS, but also because this area lies in a CAA-established OTR. The area was designated serious nonattainment under the 1-hour ozone NAAQS. Under the 1997 8-hour ozone NAAQS, both the Northern Virginia area and the neighboring Fredericksburg area were designated as moderate nonattainment. On November 13, 2002, EPA reclassified the Virginia portion of the Washington, DC-MD-VA area as severe nonattainment under the 1-hour ozone NAAQS. 67 FR 68805. Virginia subsequently submitted and EPA approved attainment plans for the 1-hour and 1997 8-hour NAAQS for the Washington area, and approved a redesignation and maintenance plan for the Fredericksburg area. Although the 1-hour ozone NAAQS was revoked effective June 2005, EPA's implementation rule for the 1997 ozone NAAQS retained Stage II-related requirements under CAA section 182(b)(3) for certain areas. Therefore, Stage II continued to apply in the Washington, DC nonattainment area as an anti-backsliding measure (for the revoked 1-hour ozone NAAQS) and in the Fredericksburg area as a maintenance measure (under the 1997 ozone NAAQS) pending EPA determination that onboard refueling vapor recovery (ORVR) was in widespread use and Virginia could demonstrate that Stage II was no longer a necessary component of its air quality plans.

Virginia adopted Stage II regulations in the November 2, 1992 edition of the Virginia Register of Regulations (Vol. 9, Issue 3) effective January 1, 1993. Stage II applicability was limited to the to the Northern Virginia volatile organic compound (VOC) Emission Control Area (comprised of Arlington, Alexandria, Fairfax, Loudon, Prince William and Stafford Counties, plus the cities of Alexandria, Fairfax, Falls Church, Manassas, and Stafford) and to the Richmond VOC Emission Control Area (comprised of the Counties of Charles City, Chesterfield, Hanover, and Henrico, plus the cities of Colonial Heights, Hopewell, and Richmond). Virginia submitted its Stage II regulation to EPA as a SIP revision on November 5, 1992. EPA approved Virginia's Stage II SIP revision on June 23, 1993 (59 FR 32353).

ORVR is an emissions control system equipped on new, gasoline-powered vehicles (beginning with model year 1998 vehicles) for the purpose of capturing refueling gasoline vapors before they escape the vehicle gas tank and to store them in an underhood canister for later engine combustion. Section 202(a)(6) of the CAA directed that Stage II requirements under 182(b)(3) would no longer apply to moderate ozone nonattainment areas upon promulgation of standards for ORVR systems as part of the emission control system on newly manufactured vehicles. Section 202(a)(6) further directs that Stage II requirements no longer apply to ozone nonattainment areas designated serious or worse upon EPA's determination that ORVR technology is in “widespread use.” EPA issued its widespread use determination on May 16, 2012 (77 FR 28772), indicating that ORVR was in widespread use throughout the U.S. vehicle fleet, and that at that time ORVR vehicles were essentially equal to and would soon surpass the emissions reductions achieved by Stage II alone.

Virginia has examined whether Stage II vapor recovery continues to be necessary for ozone control purposes, given the prevalence of ORVR-equipped gasoline-powered vehicles and the redundancy between ORVR and Stage II systems in reducing gasoline tank displacement emissions associated with refueling. Additionally, Virginia has analyzed the interference effect between certain Stage II systems and ORVR systems. As a result, Virginia determined that Stage II vapor recovery is no longer necessary as a control measure to address ambient ozone in the Washington, Fredericksburg, and Richmond areas.

On November 12, 2013 and March 18, 2014, Virginia submitted SIP revisions to EPA that evaluate and address the emissions impacts to each of those affected areas associated with removal of the Stage II program. These plans serve to amend the ozone maintenance plan for the Richmond area and the attainment plan for the Washington area to demonstrate that removal of the Stage II programs will not interfere with those areas' ability to attain and maintain any NAAQS. On May 26, 2015 (80 FR 29959), EPA approved the Commonwealth's March 18, 2014 SIP revision amending the approved ozone attainment plan for the Virginia portion of Washington nonattainment area and the approved ozone maintenance plan for the Fredericksburg area to remove the Stage II program. On August 11, 2014, EPA approved Virginia's November 12, 2013 SIP revision amending the approved ozone maintenance plan SIP for the Richmond area to remove the Stage II program.

On October 15, 2015, the Commonwealth of Virginia submitted a formal revision to remove the requirements for Stage II vapor recovery controls in Virginia ozone nonattainment areas from the approved Virginia SIP (Revision C14). This October 2015 SIP revision contains the amended Stage II vapor recovery regulatory provisions of Virginia Rule 4-37, entitled “Emission Standards for Volatile Organic Compounds from Petroleum Liquid Storage and Transfer Operations.” The October 2015 SIP revision includes Virginia's regulatory amendments listed at 9VAC5-20 and 9VAC5-40 that were adopted by Virginia in June of 2014, and published in the Virginia Register of Regulations on June 15, 2015. The purpose of the Commonwealth's 2015 SIP revision submittal is to remove Stage II vapor recovery requirements applicable in covered areas in Virginia from the Commonwealth's rule provisions governing petroleum liquid storage and transfer operations. Under Virginia's amended Rule 4-37, gasoline stations in the Washington and Fredericksburg areas were no longer required to employ Stage II systems as of January 2014, and Richmond area stations will no longer be required to employ Stage II vapor recovery systems as of January 2017. Virginia's amendment to Rule 4-37 also requires facilities electing to decommission Stage II to meet established decommissioning procedures and those electing to continue to operate Stage II to continue to properly operate and maintain their Stage II systems.

As described in the Background section of this action, EPA has already approved Virginia's SIP revisions submitted on November 12, 2013 and March 18, 2014 demonstrating that removal of Stage II as a control measure from the SIP will not interfere with the Washington, Fredericksburg, and Richmond areas' ability to attain and maintain any applicable NAAQS.

Virginia's Department of Environmental Quality (VA DEQ) examined whether Stage II vapor recovery is necessary for ozone control purposes, and determined this program is no longer beneficial to air quality of the Commonwealth, given EPA's widespread use determination for ORVR equipment in new vehicles manufactured since 1998 and the inherent redundancies between Stage II vapor recovery equipment and vehicle-based ORVR systems, as well as the known incompatibilities between certain types of Stage II vapor recovery equipment and vehicle-based, ORVR systems.

EPA has evaluated the regulatory amendments adopted by Virginia to its Rule 4-37 to rescind Stage II vapor recovery requirements for new and existing stations, to adopt decommissioning procedures and requirements for GDFs electing to no longer operate existing Stage II systems, and to require the continued operation and maintenance of Stage II equipment for stations that elect to continue participation in the program. Virginia's regulatory changes meet EPA guidance and the related requirements of sections 182 and 202 of the CAA with respect to the applicability of Stage II requirements after EPA's issuance of its widespread use policy of ORVR determination in 2012, as described in the Background section of this document. Virginia has properly analyzed the impact of removal of the Stage II program in adherence with EPA's “Guidance on Removing Stage II Gasoline Vapor Control Programs from State Implementation Plans and Assessing Comparable Measures,” dated August 7, 2012 (EPA-457/B-12-001), including applicability of Stage II or comparable measures in the OTR, per section 184 of the CAA. As previously found by EPA, Virginia has demonstrated that removal of the Stage II requirement does not interfere with any affected area's ability to attain or maintain a NAAQS, under section 110(l) of the CAA.

For further information on Virginia's analysis of the impacts of removal of the Stage II programs in the Washington and Fredericksburg areas, please refer to EPA's May 26, 2015 approval of the SIP demonstration applicable to those areas. See 80 FR 29959. For further information with respect to Virginia's analysis of the removal of Stage II in the Richmond area, please refer to EPA's August 11, 2014 approval of the Commonwealth's demonstration applicable to Richmond. See 79 FR 4671.

EPA is approving Virginia's revision to its SIP to include revised Stage II vapor recovery provisions to remove the requirement for Virginia area GDFs to operate Stage II in areas formerly subject to Stage II under CAA sections 182 and 184, and to add provisions setting requirements for GDFs opting to decommission existing Stage II systems. As described previously, EPA previously approved two earlier, related Virginia SIP revisions demonstrating that Virginia's Stage II-affected areas (i.e., the Virginia portion of Washington, DC, Fredericksburg, and Richmond ozone nonattainment areas) will not be adversely affected by the removal of the Stage II vapor recovery requirement. EPA is publishing this rule without prior proposal because EPA views this as a noncontroversial amendment and anticipates no adverse comment.

However, in the “Proposed Rules” section of today's Federal Register, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on December 20, 2016 without further notice unless EPA receives adverse comment by November 21, 2016. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

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

On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege Law, Va. Code § 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce federally authorized environmental programs in a manner that is no less stringent than their federal counterparts . . . .” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by federal law to maintain program delegation, authorization or approval.” Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with federal law, which is one of the criteria for immunity.”

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

In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of Virginia's amendments to Article 37 of 9VAC5-40, relating also to amendments to Virginia's general provisions at 9VAC5-20-21, reflecting the addition of a new source of documents incorporated by reference, effective on July 20, 2015. Additionally, Virginia amended its Rule 4-37 governing petroleum liquid and transfer operations applicable to existing stationary sources. Specifically, Virginia modified requirements for the Commonwealth's Stage II vapor recovery program in 9-VAC5-5220 and 9VAC5-5270, effective July 20, 2015. 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 of the SIP compilation.1 EPA has made, and will continue to make, these materials generally available through www.regulations.gov and/or at the EPA Region III Office (please contact the person identified in the “For Further Information Contact” section of this preamble for more information).

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

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

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

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

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

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

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

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

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

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

The SIP is not approved to apply on any Indian reservation land as defined in 18 U.S.C. 1151 or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 20, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking action. This action to amend Virginia's approved Stage II vapor recovery SIP to amend the Commonwealth's requirements for the Stage II vapor recovery program may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

This Federal Register notice, the petition for reconsideration and the EPA's letter addressing the petition for reconsideration are available in the docket under Docket ID No. EPA-HQ-OAR-2009-0734.

Docket. The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2009-0734. Publicly available docket materials are available either electronically through http://www.regulations.gov or in hard copy at the EPA Docket Center (EPA/DC), EPA WJC West, Room 3334, 1301 Constitution Ave. NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the Air Docket is (202) 566-1742. This action, the petition for reconsideration and the EPA's letter addressing the petition can also be found on the EPA's Web site at http://www.epa.gov/ttn/oarpg.

Electronic access. You may access this Federal Register document electronically from the Government Printing Office under the “Federal Register” listings at FDSys (http://www.thefederalregister.org/fdsys/browse/collection.action?collectionCode=FR).

Section 307(b)(1) of the Clean Air Act (CAA) indicates which Federal Court of Appeals have venue over petitions for review of final EPA actions. This section provides, in part, that the petitions for review must be filed in the Court of Appeals for the District of Columbia Circuit if: (i) The agency action consists of “nationally applicable regulations promulgated, or final action taken, by the Administrator;” or (ii) such actions are locally or regionally applicable, if “such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination.”

The EPA has determined that its action denying the petition for reconsideration is nationally applicable for purposes of CAA section 307(b)(1) because the action directly affects the final Standards of Performance for New Residential Wood Heaters, new Residential Hydronic Heaters and Forced-Air Furnaces published on March 16, 2015, (“2015 New Source Performance Standards (NSPS)”), which are nationally applicable regulations. Thus, any petitions for review of the EPA's decision to deny the petition for reconsideration described in this document must be filed in the United States Court of Appeals for the District of Columbia Circuit by December 20, 2016.

The 2015 NSPS finalizes amendments to the 1988 Standards of Performance for New Residential Wood Heaters (40 CFR part 60, subpart AAA), i.e., the 1988 NSPS, and adds one new subpart: Standards of Performance for the New Residential Hydronic Heaters and Forced-Air Furnaces (40 CFR part 60, subpart QQQQ). The 2015 NSPS was developed following a CAA section 111(b)(1)(B) review of the 1988 NSPS (53 FR 5860, February 26, 1988). This information is contained in the docket, which is available at http://www.regulations.gov. On February 3, 2014, the EPA proposed Standards of Performance for New Residential Wood Heaters, New Residential Hydronic Heaters and Forced-Air Furnaces (79 FR 6373). The EPA received additional data and comments during the public comment period. These data and comments were considered and analyzed and, where appropriate, the EPA revised the proposed rule. The final rule was published on March 16, 2015 (80 FR 13671).

On June 2, 2015, Richard S. Burns & Company, Inc. (“Burns”) submitted a petition for reconsideration of the 2015 NSPS (80 FR 13671, March 16, 2015). In its petition, Burns asks the EPA to reconsider aspects of the final rule's pellet fuel requirements in 40 CFR 60.532(f). Specifically, Burns asked that the EPA reconsider the ban on pellet fuels made from construction and demolition waste and the ban on pellet fuels made from “prohibited fuels” which includes construction or demotion debris and allow certain wood that has been sorted from construction or demolition waste to be used in the manufacture of pellet fuels for residential wood heaters.

Burns' reconsideration petition was submitted under Section 307(d)(7)(B) of the CAA, which sets forth the criteria for reconsideration. That section states that “(o)nly an objection to a rule or procedure which was raised with reasonable specificity during the period for public comment (including any public hearing) may be raised during judicial review. If the person raising an objection can demonstrate to the Administrator that it was impractical to raise such objection within such time or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule, the Administrator shall convene a proceeding for reconsideration of the rule and provide the same procedural rights as would have been afforded had the information been available at the time the rule was proposed.”

The EPA has carefully considered the petition and supporting information and evaluated whether the petition meets the CAA section 307(d)(7)(B) criteria for reconsideration. The EPA has concluded that the petition does not meet the criteria for reconsideration. Thus, in a letter to the petitioner, the EPA Administrator, Gina McCarthy, denied the Richard S. Burns & Company, Inc.'s petition, and explained the reasons for the denial. This letter is available in the docket for this action.

For the reasons discussed in the letter to the petitioner, their petition to reconsider the final Standards of Performance for New Residential Wood Heaters, New Residential Hydronic Heaters and Forced-Air Furnaces is denied.

I. Authorization of State-Initiated Changes A. Why are revisions to State programs necessary?

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

We conclude that Louisiana's revisions to its authorized program meet all of the statutory and regulatory requirements established by RCRA. We found that the State-initiated changes make Louisiana's rules more clear or conform more closely to the Federal equivalents and are so minor in nature that a formal application is unnecessary. Therefore, we grant Louisiana final authorization to operate its hazardous waste program with the changes described in the table at Section G below. Louisiana has responsibility for permitting Treatment, Storage, and Disposal Facilities (TSDFs) within its borders (except in Indian Country) and for carrying out all authorized aspects of the RCRA program, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA). New Federal requirements and prohibitions imposed by Federal regulations that EPA promulgates under the authority of HSWA take effect in authorized States before they are authorized for the requirements. Thus, the EPA will implement those requirements and prohibitions in Louisiana, including issuing permits, until the State is granted authorization to do so.

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

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

• Enforce RCRA requirements and suspend or revoke permits; and

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

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

The EPA did not publish a proposal before this rule because we view this as a routine program change and do not expect comments that oppose this approval. We are providing an opportunity for public comment now. In addition to this rule, in the proposed rules section of this Federal Register, we are publishing a separate document that proposes to authorize the State program changes.

If the EPA receives comments that oppose the authorization of the State-initiated changes in this codification document, we will withdraw this rule by publishing a document in the Federal Register before the rule becomes effective. The EPA will base any further decision on the authorization of the State program changes on the proposal mentioned in the previous paragraph. We will then address all public comments in a later final rule. You may not have another opportunity to comment. If you want to comment on this authorization, you must do so at this time. If we receive comments that oppose only the authorization of a particular change to the State hazardous waste program we may withdraw only that part of this rule, but the authorization of the program changes that the comments do not oppose will become effective on the date specified above. The Federal Register withdrawal document will specify which part of the authorization of the State program will become effective and which part is being withdrawn.

In addition to the authorization of the rules described above in this document, the purpose of this Federal Register document is to codify Louisiana's base hazardous waste management program and its revisions to that program. The EPA has already provided notices and opportunity for comments on the Agency's decisions to authorize the Louisiana program, and the EPA is not now reopening the decisions, nor requesting comments, on the Louisiana authorizations as published in the Federal Register documents specified in Section I.F of this preamble.

The State of Louisiana initially received final authorization on January 24, 1985, effective February 7, 1985 (50 FR 3348), to implement its base Hazardous Waste Management Program. We granted authorization for changes to their program on November 28, 1989 (54 FR 48889) effective January 29, 1990; August 26, 1991 (56 FR 41958), as corrected October 15, 1991 (56 FR 51762) effective October 25, 1991; November 7, 1994 (59 FR 55368) effective January 23, 1995 (Note: On January 23, 1995 (60 FR 4380), the EPA responded to adverse public comments and affirmed the effective date for the November 7, 1994 final rule. Then on April 11, 1995 (60 FR 18360); the EPA also made administrative corrections for the January 23, 1995 Federal Register document); December 23, 1994 (59 FR 66200) effective March 8, 1995; October 17, 1995 (60 FR 53704 and 60 FR 53707) effective January 2, 1996; March 28, 1996 (61 FR 13777) effective June 11, 1996; December 29, 1997 (62 FR 67572) effective March 16, 1998; October 23, 1998 (63 FR 56830) effective December 22, 1998; August 25, 1999 (64 FR 46302) effective October 25, 1999; September 2, 1999 (64 FR 48099) effective November 1, 1999; February 28, 2000 (65 FR 10411) effective April 28, 2000; January 2, 2001 (66 FR 23) effective March 5, 2001; December 9, 2003 (68 FR 68526) effective February 9, 2004; June 10, 2005 (70 FR 33852) effective August 9, 2005; November 13, 2006 (71 FR 66116) effective January 12, 2007; August 16, 2007 (72 FR 45905) effective October 15, 2007; May 20, 2009 (74 FR 23645) effective July 20, 2009; August 5, 2010 (75 FR 47223) effective October 4, 2010; June 24, 2011 (76 FR 37021) effective August 23, 2011; June 28, 2011 (77 FR 38530) effective August 27, 2012; July 13, 2012 (77 FR 41292) effective September 11, 2012; and September 14, 2015 (80 FR 55032) effective November 13, 2015.

The State has made amendments to the provisions listed in the table which follows. These amendments clarify the State's regulations and make the State's regulations more internally consistent. The State's laws and regulations, as amended by these provisions, provide authority which remains equivalent to and, no less stringent than the Federal laws and regulations. These State-initiated changes satisfy the requirements of 40 CFR 271.21(a). We are granting Louisiana final authorization to carry out the following provisions of the State's program in lieu of the Federal program. These provisions are analogous to the indicated RCRA regulations found at 40 CFR as of July 1, 2012. The Louisiana provisions are from the Louisiana Administrative Code (LAC), Title 33, Part V dated September 2014.

This authorization does not affect the status of State permits and those permits issued by the EPA because no new substantive requirements are a part of these revisions.

Louisiana is not authorized to carry out its Hazardous Waste Program in Indian Country within the State. This authority remains with EPA. Therefore, this action has no effect in Indian Country.

Codification is the process of placing a State's statutes and regulations that comprise the State's authorized hazardous waste management program into the Code of Federal Regulations (CFR). Section 3006(b) of RCRA, as amended, allows the Environmental Protection Agency (EPA) to authorize State hazardous waste management programs to operate in lieu of the Federal hazardous waste management regulatory program. The EPA codifies its authorization of State programs in 40 CFR part 272 and incorporates by reference State statutes and regulations that the EPA will enforce under sections 3007 and 3008 of RCRA and any other applicable statutory provisions.

The incorporation by reference of State authorized programs in the CFR should substantially enhance the public's ability to discern the current status of the authorized State program and State requirements that can be Federally enforced. This effort provides clear notice to the public of the scope of the authorized program in each State.

The EPA incorporated by reference Louisiana's then authorized hazardous waste management program effective March 16, 1998 (62 FR 67578), October 4, 2010 (75 FR 47223), September 11, 2012 (77 FR 41292), and November 25, 2013 (78 FR 58890).

In this document, the EPA is revising Subpart T of 40 CFR part 272 to include the authorization revision actions effective November 13, 2015 (80 FR 55032).

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the Louisiana rules described in the amendments to 40 CFR part 272 set forth below. The EPA has made, and will continue to make, these documents available electronically through http://www.regulations.gov and in hard copy at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).

The purpose of this Federal Register document is to codify Louisiana's base hazardous waste management program and its revisions to that program. This document incorporates by reference Louisiana's hazardous waste statutes and regulations and clarifies which of these provisions are included in the authorized and Federally enforceable program. By codifying Louisiana's authorized program and by amending the Code of Federal Regulations, the public will be more easily able to discern the status of Federally approved requirements of the Louisiana hazardous waste management program.

The EPA is incorporating by reference the Louisiana authorized hazardous waste management program in subpart T of 40 CFR part 272. Section 272.951 incorporates by reference Louisiana's authorized hazardous waste statutes and regulations. Section 272.951 also references the statutory provisions (including procedural and enforcement provisions) which provide the legal basis for the State's implementation of the hazardous waste management program, the Memorandum of Agreement, the Attorney General's Statements and the Program Description, which are approved as part of the hazardous waste management program under Subtitle C of RCRA.

The EPA retains its authority under statutory provisions, including but not limited to, RCRA sections 3007, 3008, 3013, and 7003, and other applicable statutory and regulatory provisions to undertake inspections and enforcement actions and to issue orders in authorized States. With respect to these actions, the EPA will rely on Federal sanctions, Federal inspection authorities, and Federal procedures rather than any authorized State analogues to these provisions. Therefore, the EPA is not incorporating by reference such particular, approved Louisiana procedural and enforcement authorities. Section 272.951(c)(2) of 40 CFR lists the statutory and regulatory provisions which provide the legal basis for the State's implementation of the hazardous waste management program, as well as those procedural and enforcement authorities that are part of the State's approved program, but these are not incorporated by reference.

The public needs to be aware that some provisions of Louisiana's hazardous waste management program are not part of the Federally authorized State program. These non-authorized provisions include:

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

(2) Federal rules adopted by Louisiana but for which the State is not authorized;

(3) Unauthorized amendments to authorized State provisions;

(4) New unauthorized State requirements; and

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

State provisions that are “broader in scope” than the Federal program are not part of the RCRA authorized program and the EPA will not enforce them. Therefore, they are not incorporated by reference in 40 CFR part 272. For reference and clarity, 40 CFR 272.951(c)(3) lists the Louisiana regulatory provisions which are “broader in scope” than the Federal program and which are not part of the authorized program being incorporated by reference. “Broader in scope” provisions cannot be enforced by the EPA; the State, however, may enforce such provisions under State law.

Additionally, Louisiana's hazardous waste regulations include amendments which have not been authorized by the EPA. Since the EPA cannot enforce a State's requirements which have not been reviewed and authorized in accordance with RCRA section 3006 and 40 CFR part 271, it is important to be precise in delineating the scope of a State's authorized hazardous waste program. Regulatory provisions that have not been authorized by the EPA include amendments to previously authorized State regulations as well as certain Federal rules and new State requirements.

Federal rules Louisiana has adopted but is not authorized for include those published in the Federal Register on August 8, 1986 (51 FR 28664); December 1, 1987 (52 FR 45788; Post-Closure Permits requirements); April 12, 1996 (61 FR 16290); and December 17, 2010 (75 FR 78915). In those instances where Louisiana has made unauthorized amendments to previously authorized sections of State code, the EPA is identifying in 40 CFR 272.951(c)(4) any regulations which, while adopted by the State and incorporated by reference, include language not authorized by the EPA. Those unauthorized portions of the State regulations are not Federally enforceable. Thus, notwithstanding the language in Louisiana hazardous waste regulations incorporated by reference at 40 CFR 272.951(c)(1), the EPA will only enforce those portions of the State regulations that are actually authorized by the EPA. For the convenience of the regulated community, the actual State regulatory text authorized by the EPA for the citations listed at 272.951(c)(4) (i.e., without the unauthorized amendments) is compiled as a separate document, Addendum to the EPA Approved Louisiana Regulatory Requirements Applicable to the Hazardous Waste Management Program, dated November 2015. This document is available from EPA Region 6, Sixth Floor, 1445 Ross Avenue, Dallas, Texas 75202-2733, Phone number: (214) 665-8533, and also Louisiana Department of Environmental Quality, 602 N. Fifth Street, Baton Rouge, Louisiana 70884-2178, phone number (225) 219-3559.

State regulations that are not incorporated by reference in this rule at 40 CFR 272.951(c)(1), or that are not listed in 40 CFR 272.951(c)(2) (“legal basis for the State's implementation of the hazardous waste management program”), 40 CFR 272.951(c)(3) (“broader in scope”) or 40 CFR 272.951(c)(4) (“unauthorized state amendments”), are considered new unauthorized State requirements. These requirements are not Federally enforceable.

With respect to any requirement pursuant to the Hazardous and Solid Waste Amendments of 1984 (HSWA) for which the State has not yet been authorized, the EPA will continue to enforce the Federal HSWA standards until the State is authorized for these provisions.

The EPA is not amending 40 CFR part 272 to include HSWA requirements and prohibitions that are implemented by the EPA. Section 3006(g) of RCRA provides that any HSWA requirement or prohibition (including implementing regulations) takes effect in authorized and not authorized States at the same time. A HSWA requirement or prohibition supersedes any less stringent or inconsistent State provision which may have been previously authorized by the EPA (50 FR 28702, July 15, 1985). The EPA has the authority to implement HSWA requirements in all States, including authorized States, until the States become authorized for such requirement or prohibition. Authorized States are required to revise their programs to adopt the HSWA requirements and prohibitions, and then to seek authorization for those revisions pursuant to 40 CFR part 271.

Instead of amending the 40 CFR part 272 every time a new HSWA provision takes effect under the authority of RCRA section 3006(g), the EPA will wait until the State receives authorization for its analog to the new HSWA provision before amending the State's 40 CFR part 272 incorporation by reference. Until then, persons wanting to know whether a HSWA requirement or prohibition is in effect should refer to 40 CFR 271.1(j), as amended, which lists each such provision.

Some existing State requirements may be similar to the HSWA requirement implemented by the EPA. However, until the EPA authorizes those State requirements, the EPA can only enforce the HSWA requirements and not the State analogs. The EPA will not codify those State requirements until the State receives authorization for those requirements.

The Office of Management and Budget (OMB) has exempted this action from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993), and therefore this action is not subject to review by OMB. This rule incorporates by reference Louisiana's authorized hazardous waste management regulations and imposes no additional requirements beyond those imposed by State law. Accordingly, I certify that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule merely incorporates by reference certain existing State hazardous waste management program requirements which the EPA already approved under 40 CFR part 271, and with which regulated entities must already comply, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

This action will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely incorporates by reference existing State hazardous waste management program requirements without altering the relationship or the distribution of power and responsibilities established by RCRA. This action also does not have Tribal implications within the meaning of Executive Order 13175 (65 FR 67249, November 6, 2000).

This action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant and it does not make decisions based on environmental health or safety risks. This action is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.

The requirements being codified are the result of Louisiana's voluntary participation in the EPA's State program authorization process under RCRA Subtitle C. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, the EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. The EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

Executive Order 12898 (59 FR 7629, Feb. 16, 1994) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. Because this rule authorizes pre-existing State rules which are at least equivalent to, and no less stringent than existing federal requirements, and imposes no additional requirements beyond those imposed by State law, and there are no anticipated significant adverse human health or environmental effects, the rule is not subject to Executive Order 12898.

The Congressional Review Act, 5 U.S.C. 801 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this document and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2). This action will be effective December 20, 2016.

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

Viewing Items Associated With This Document

To view OMB's approval memo or the Requirements for Vessels with Registry Endorsements or Foreign-Flagged Vessels that Perform Certain Aquaculture Support Operations final rule, go to www.regulations.gov, type the docket number, USCG-2015-0086, in the “SEARCH” box and click “SEARCH.” Click on “Open Docket Folder” in the first item listed. Use the following link to go directly to the docket: http://www.regulations.gov/docket?D=USCG-2015-0086.

On September 15, 2016, the Coast Guard published a final rule (81 FR 63420) that implemented Requirements for Vessels with Registry Endorsements or Foreign-Flagged Vessels that Perform Certain Aquaculture Support Operations. Section 46 CFR 106.115 in that rule contains a collection-of-information provision that requires approval by OMB under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3520. On September 28, 2016, OMB approved the Coast Guard's collection of information request for this final rule and assigned OMB Control Number 1625-0126 to the collection. The approval for this collection of information expires on September 30, 2019.

This document is issued under the authority of 5 U.S.C. 552(a).

In rule FR Doc. 2016-23203, published in the Federal Register at 81 FR 67776, on September 30, 2016, make the following corrections:

This final rule amends the DFARS as follows—

1. Provides direction to contracting officers at DFARS 204.270-2(c) to follow the procedures at DFARS Procedures, Guidance, and Information (PGI) 204.270-2(c) regarding the creation and processing of contract deficiency reports;

2. Corrects a reference at DFARS 246.870-2(a)(2) to the clause at 252.246-7008, Sources of Electronic Parts; and

3. Corrects a reference at DFARS 252.246-7008(b)(3)(i) to another paragraph of the clause.

Therefore, 48 CFR parts 204, 246, and 252 are amended as follows:

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

NMFS closed directed fishing for Pacific ocean perch (POP) in the Bering Sea subarea of the BSAI under § 679.20(d)(1)(iii) (81 FR 14773; March 18, 2016).

NMFS has determined that approximately 4,280 metric tons of POP remain in the directed fishing allowance. Therefore, in accordance with § 679.25(a)(1)(i), (a)(2)(i)(C), and (a)(2)(iii)(D), and to fully utilize the 2016 total allowable catch of POP in the Bering Sea subarea of the BSAI, NMFS is terminating the previous closure and is opening directed fishing for POP in Bering Sea subarea of the BSAI, effective 1200 hrs, A.l.t., October 20, 2016, through 1200 hrs, A.l.t., December 31, 2016. This will enhance the socioeconomic well-being of harvesters dependent on POP in this area.

The Administrator, Alaska Region considered the following factors in reaching this decision: (1) The current catch of POP in the BSAI and, (2) the harvest capacity and stated intent on future harvesting patterns of vessels participating in this fishery.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B), as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the opening of POP directed fishing in the Bering Sea subarea of the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of October 17, 2016.

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

Without this inseason adjustment, NMFS could not allow the fishery for POP in the Bering Sea subarea of the BSAI to be harvested in an expedient manner and in accordance with the regulatory schedule. Under § 679.25(c)(2), interested persons are invited to submit written comments on this action to the above address until November 4, 2016.

This action is required by §§ 679.20 and 679.25 and is exempt from review under Executive Order 12866.

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

The 2016 flathead sole, rock sole, and yellowfin sole CDQ reserves specified in the BSAI are 1,537 metric tons (mt), 5,215 mt, and 17,013 mt as established by the final 2016 and 2017 harvest specifications for groundfish in the BSAI (81 FR 14773, March 18, 2016) and following revision (81 FR 69442, October 6, 2016). The 2016 flathead sole, rock sole, and yellowfin sole CDQ ABC reserves are 5,552 mt, 12,023 mt, and 5,639 mt as established by the final 2016 and 2017 harvest specifications for groundfish in the BSAI (81 FR 14773, March 18, 2016) and following revision (81 FR 69442, October 6, 2016).

The Bristol Bay Economic Development Corporation has requested that NMFS exchange 304 mt of flathead sole and 245 mt of rock sole CDQ reserves for 549 mt of yellowfin sole CDQ ABC reserves under § 679.31(d). Therefore, in accordance with § 679.31(d), NMFS exchanges 304 mt of flathead sole, 245 mt of rock sole CDQ reserves for 549 mt of yellowfin sole CDQ ABC reserves in the BSAI. This action also decreases and increases the TACs and CDQ ABC reserves by the corresponding amounts. Tables 11 and 13 of the final 2016 and 2017 harvest specifications for groundfish in the BSAI (81 FR 14773, March 18, 2016), and following revision (81 FR 69442, October 6, 2016), are revised as follows: