Federal Register Vol. 81, No.43,

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to remove AD 2014-07-52, Amendment 39-17858 (79 FR 33054, June 10, 2014) and add a new AD. AD 2014-07-52 applied to Airbus Helicopters Model AS350B, AS350BA, AS350B1, AS350B2, AS350B3, AS350C, AS350D, AS350D1, AS355E, AS355F, AS355F1, AS355F2, AS355N, and AS355NP helicopters with Modification (MOD) 07 3215 or with a reinforcement angle part number (P/N) 350A08.2493.21 or P/N 350A08.2493.23 installed. AD 2014-07-52 required, for helicopters with 640 or more hours TIS, repetitively inspecting each reinforcement angle for a crack every 10 hours TIS. As an optional action, AD 2014-07-52 allowed a repetitive 165 hour TIS inspection of the reinforcement angle under each attaching screw for a crack. AD 2014-07-52 was prompted by Emergency AD No. 2014-0076-E, dated March 25, 2014, issued by EASA, which is the Technical Agent for the Member States of the European Union. EASA advises that during the inspection of several AS355 helicopters, cracks found in the reinforcement angles had initiated on the non-visible surface of the angle, and that this condition, if not corrected, could lead to further crack propagation and subsequent loss of the tailboom, resulting in loss of control of the helicopter. The EASA AD requires repetitive inspections of the reinforcement angles, and states that a terminating action is under investigation.

The NPRM published in the Federal Register on July 23, 2015 (80 FR 43645). The NPRM proposed to retain the 10 hour TIS repetitive inspections of the reinforcement angle and require (instead of allow as an option) the 165 hour TIS inspection of the junction frame bores as terminating action for the 10 hour TIS inspections. The NPRM also proposed to revise the applicability to only include helicopters with reinforcement angle P/N 350A08.2493.21 and P/N 350A08.2493.23, and not include helicopters with MOD 07 3215. Since MOD 07 3215 installed reinforcement angle P/N 350A08.2493.21 and P/N 350A08.2493.23, AD 2014-07-52 was written to apply to helicopters with either the reinforcement angle P/Ns or with MOD 07 3215, so that operators could more easily determine whether AD 2014-07-52 applied to their aircraft. Airbus Helicopters then developed MOD 07 3232, which removes reinforcement angle P/N 350A08.2493.21 and P/N 350A08.2493.23. We removed MOD 07 3215 from the applicability because we did not want the AD to apply to a helicopter with both MOD 07 3215 and MOD 07 3232 in its aircraft records, as it would not have reinforcement angle P/N 350A08.2493.21 or P/N 350A08.2493.23 installed. The proposed requirements were intended to detect a crack in the reinforcement angle, which if not corrected, could result in loss of the tailboom and subsequent loss of control of the helicopter.

Since the NPRM was issued, a group email address has been established for requesting an FAA alternative method of compliance for a helicopter of foreign design. We have revised this contact information in this final rule to reflect the new email address.

We gave the public the opportunity to participate in developing this AD, but we did not receive any comments on the NPRM (79 FR 33054, June 10, 2014).

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

We consider this AD to be an interim action. If final action is later identified, we might consider further rulemaking then.

This AD is not applicable to the AS350BB as that model is not type certificated in the U.S. This AD applies to Airbus Helicopters Model AS350C and AS350D1 helicopters because these helicopters have a similar design. Finally, the EASA AD requires operators to contact Airbus Helicopters if there is a crack, and this AD does not, however it does require repairing the crack before further flight.

Airbus Helicopters issued Emergency Alert Service Bulletin (EASB) No. 05.00.70 for Model AS350B, BA, BB, Bl, B2, B3, and D helicopters, and EASB No. 05.00.62 for Model AS355E, F, F1, F2, N, and NP helicopters, both Revision 0 and dated March 24, 2014. EASB No. 05.00.70 and EASB No. 05.00.62 describe procedures for inspecting the angle reinforcements for a crack. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD affects 822 helicopters of U.S. Registry. We estimate that operators may incur the following costs in order to comply with this AD. At an average labor rate of $85 per work-hour, inspecting the reinforcement angles for a crack without removing the screws requires 1.0 work-hour, for a cost per helicopter of $85 and a total cost of $69,870 for the U.S. fleet, per inspection cycle. Removing the screws and inspecting the reinforcement angle requires 2 work-hours, for a cost per helicopter of $170 and a total cost of $139,740 for the U.S. fleet, per inspection cycle. If required, repairing a cracked reinforcement angle requires about 10 work-hours, and required parts cost about $300, for a total cost per helicopter of $1,150.

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

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

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

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

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

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

(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; and

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

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

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all M7 Aerospace LLC Models SA26-AT, SA226-T(B), SA226-AT, SA226-T, SA226-TC, SA227-AC (C-26A), SA227-AT, SA227-BC (C-26A), SA227-CC, SA227-DC (C-26B), and SA227-TT airplanes. The NPRM published in the Federal Register on August 25, 2015 (80 FR 51495). The NPRM was prompted by a report of an accident where an M7 Aerospace LLC Model SA227-AC airplane experienced left engine power loss and consequent loss of control. Training manuals provide descriptions of the negative torque system (NTS), which provides partial anti-drag protection if a negative torque condition is sensed. This feature might cause pilots to assume the system automatically provides full anti-drag protection in the event of an engine failure or power loss. The pilot must also take prompt action to fully feather the propeller on the failed engine to reduce drag. A pilot's sole reliance on the NTS for reducing drag in the event of engine power loss may result in the pilot's failure to initiate the Engine Failure Inflight checklist and feather the propellers in time.

The NPRM proposed to require inserting updates into the airplane flight manual (AFM) and/or the pilot operating handbook (POH) that will clearly establish that the NTS is not designed to automatically feather the propeller but only to provide drag protection. We are issuing this AD to correct the unsafe condition on these products.

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (80 FR 51495, August 25, 2015) or on the determination of the cost to the public.

We reviewed the relevant data and determined that air safety and the public interest require adopting this AD as proposed except for minor editorial changes. We have determined that these minor changes:

• Are consistent with the intent that was proposed in the NPRM (80 FR 51495, August 25, 2015) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM (80 FR 51495, August 25, 2015).

We reviewed the following M7 Aerospace LLC service information:

• M7 Aerospace LLC Merlin SA26-AT Dash One Airplane Flight Manual (AFM), Revision, section III, pages III-1 through III-6, revised May 14, 2015; and pages III-7 through III-8, FAA Approved May 14, 2015;

• M7 Aerospace LLC Merlin SA26-AT Dash Two, AFM, Revision, section III, pages III-1 through III-6, revised May 14, 2015, and pages III-7 through III-8, FAA Approved May 14, 2015;

• M7 Aerospace LLC Swearingen Merlin SA226-T AFM, Revision A-29, section III, pages III-2 though III-25, revised November 14, 2014, and page III-26, FAA Approved November 14, 2014;

• M7 Aerospace LLC Swearingen Merlin SA226-AT AFM, Revision B-33, section III, pages III-2 through III-24, revised November 14, 2014, and pages III-25 through III-30, FAA approved November 14, 2014;

• M7 Aerospace LLC Merlin IIIB SA226-T(B) AFM, Revision B-29, section 3, pages 3-2 through page 3-20, revised November 14, 2014; and pages 3-21 through 3-24, issued November 14, 2014;

• M7 Aerospace LLC Swearingen Metro SA226-TC AFM, Revision A-43, section III, pages III-2 through page III-24, revised November 14, 2014; and pages III-25 through III-32, FAA Approved November 14, 2014;

• M7 Aerospace LLC Fairchild Aircraft Model SA227-AC (4AC) Metro III AFM, Revision B-11, section 3, pages 3-3 through 3-30, revised November 14, 2014;

• M7 Aerospace LLC Fairchild Aircraft Model SA227-AC (4MC) Metro III AFM, Revision A-12, section 3, pages 3-4 through 3-30, revised November 14, 2014; and pages 3-31 through 3-36, FAA Approved November 14, 2014;

• M7 Aerospace LLC Fairchild Aircraft Model SA227-AC (6AC) Metro III AFM, Revision A-16, section 3, pages 3-4 through 3-20, revised November 14, 2014;

• M7 Aerospace LLC Fairchild Aircraft Model SA227-AC (7AC) Metro III AFM, Revision B-19, section 3, pages 3-3 through 3-30, revised December 9, 2014; and pages 3-31 through 3-34, FAA Approved December 9, 2014;

• M7 Aerospace LLC Fairchild Aircraft SA227-AC (7MC) Metro III AFM, Revision A-13, section 3, pages 3-4 through 3-30, revised December 9, 2014; and pages 3-31 through 3-34, FAA Approved December 9, 2014;

• M7 Aerospace LLC Fairchild Aircraft SA227-AC (8AC) Metro III AFM, Revision A-15, section 3, pages 3-4 through 3-30, revised December 9, 2014; and pages 3-31 through 3-34, FAA Approved December 9, 2014;

• M7 Aerospace LLC Fairchild Aircraft SA227-AT (4AT) Merlin IVC, Pilot's Operating Handbook (POH)/AFM, Revision A-12, section 3, pages 3-4 through 3-30, revised November 14, 2014; and pages 3-31 through 3-34, FAA Approved November 14, 2014;

• M7 Aerospace LLC Fairchild Aircraft SA227-AT (6AT) Merlin IVC POH/AFM, Revision 13, section 3, pages 3-4 through 3-30, revised November 14, 2014; and pages 3-31 through 3-36, FAA Approved November 14, 2014;

• M7 Aerospace LLC Fairchild Aircraft SA227-AT (7AT) Merlin IVC POH/AFM, Revision B-12, section 3, pages 3-4 through 3-30, revised December 9, 2014, and pages 3-31 through 3-34, FAA Approved December 9, 2014;

• M7 Aerospace LLC Fairchild Aircraft SA227-AT (8AT) Merlin IVC POH/AFM, Revision 13, section 3, pages 3-4 through 3-30, revised December 9, 2014; and pages 3-31 through 3-34, FAA Approved December 9, 2014;

• M7 Aerospace LLC Fairchild Aircraft SA227-BC (6BC) AFM, Revision 21, section 3, pages 3-4 through 3-30, revised December 9, 2014; and pages 3-31 through 3-36, FAA Approved December 9, 2014;

• M7 Aerospace LLC Fairchild Aircraft SA227-CC (6CC) AFM, Revision 17, section 3, pages 3-3 through 3-24, revised December 9, 2014; and pages 3-25 through 3-30, FAA Approved December 9, 2014;

• M7 Aerospace LLC Fairchild Aircraft SA227-DC (6DC) AFM, Revision 34, section 3, pages 3-3 through 3-26, revised December 9, 2014; and pages 3-27 through 3-32, FAA Approved December 9, 2014;

• M7 Aerospace LLC Fairchild Aircraft SA227-DC (8DC) AFM, Revision 8, section 3, pages 3-3 through 3-26, revised December 9, 2014; and pages 3-27 through 3-34, FAA Approved December 9, 2014;

• M7 Aerospace LLC Fairchild 300 Aircraft SA227-TT POH/AFM, Revision 15, section 3, pages 3-3 through 3-30, revised December 9, 2014; and pages 3-31 through 3-34, FAA Approved December 9, 2014;

• M7 Aerospace LLC Fairchild 300 Aircraft SA227-TT (312) POH/AFM, Revision 13, section 3, page 3-3 and pages 3-5 through 3-30, revised December 9, 2014, and pages 3-31 through 3-32, FAA Approved December 9, 2014; and

• M7 Aerospace LLC Fairchild Model SA227-TT Merlin IIIC Aircraft POH/AFM, Revision 29, section 3, pages 3-3 through 3-24, revised December 9, 2014, and pages 3-25 through 3-32, issued December 9, 2014.

These revisions to the AFM and POH clearly establish that the NTS is not designed to automatically feather the propeller but only to provide drag protection. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD affects 360 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

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

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

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

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

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

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

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

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

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends controlled airspace at Harvey Municipal Airport, Harvey, ND; and Rolla Municipal Airport, Rolla, ND.

In a review of the airspace, the FAA found the airspace for Harvey Municipal Airport, Harvey, ND; and Rolla Municipal Airport, Rolla, ND, as published in FAA Order 7400.9Z, Airspace Designations and Reporting Points, required the geographic coordinates of the above airports, Minot AFB, Minot, ND; and the Devil's Lake VOR/DME to be updated. This is an administrative change and does not affect the boundaries or operating requirements of the above airports.

Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9Z dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.9Z, Airspace Designations and Reporting Points, dated August 6, 2015, and effective September 15, 2015. FAA Order 7400.9Z is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.9Z lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This action amends Title 14, Code of Federal Regulations (14 CFR) part 71, updating the geographic coordinates for Class E airspace extending upward from 700 feet above the surface at Harvey Municipal Airport, Harvey, ND; Rolla Municipal Airport, Rolla, ND; Minot AFB, Minot ND; and the Devils Lake VOR/DME to coincide with the FAA's aeronautical database.

This is an administrative change amending the description for Harvey Municipal Airport and Rolla Municipal Airport to be in concert with the FAA's aeronautical database, and does not affect the boundaries, or operating requirements of the airspace; therefore, notice and public procedure under 5 U.S.C. 553(b) are unnecessary.

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

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

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

Background

A final rule was published in the Federal Register on January 14, 2016 (81 FR 1877), FR Doc. 2015-33095, that reversed the order of points listed in the legal description of RNAV Route Q-35 as published in FAA Order 7400.9, Airspace Designations and Reporting Points. Subsequent to publication, the FAA found that the FAA docket number for this document was inadvertently mistyped. This action corrects the FAA docket number.

Accordingly, pursuant to the authority delegated to me, in the Federal Register of January 14, 2016 (81 FR 1877), the docket number, as published in the Federal Register on January 14, 2016 (81 FR 1877), FR Doc. 2015-33095, amending the legal description of RNAV Route Q-35, is corrected as follows:

The Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (Pub. L. 106-181) was signed into law on April 5, 2000. Section 708 of this statute, “Prohibitions Against Smoking on Scheduled Flights” (codified as 49 U.S.C. 41706), banned passengers from smoking on all flights in scheduled passenger interstate and intrastate air transportation, and directed the Secretary of Transportation to prohibit smoking in foreign air transportation (with an exception process for foreign carriers). Shortly thereafter, the Department of Transportation (“DOT,” or “the Department”) amended its rule on smoking aboard aircraft, 14 CFR part 252, to implement section 41706. Under part 252, the smoking of tobacco products is banned on all scheduled passenger flights of air carriers, and on all scheduled passenger flight segments of foreign air carriers between points in the United States and between the United States and foreign points. Under part 252, foreign governments may request and obtain a waiver from DOT provided that an alternative smoking prohibition resulting from bilateral negotiations is in effect. Further, part 252 was amended to permit carriers operating single-entity charters to allow smoking throughout the aircraft, but also required a no-smoking section for each class of service (e.g., first class) on other charter flights where smoking is not banned.

Throughout this preamble, we use the terms “air carrier” and “foreign air carrier” as defined in 49 U.S.C. 40102, in which an “air carrier” is a citizen of the United States undertaking to provide air transportation, and a “foreign air carrier” is a person, not a citizen of the United States, undertaking to provide foreign air transportation.

On September 15, 2011, the Department published a notice of proposed rulemaking (NPRM) in which it proposed to amend its existing smoking rule (part 252) to explicitly ban the use of e-cigarettes on all flights covered by that rule (i.e., all flights of U.S. air carriers in scheduled passenger interstate, intrastate and foreign air transportation and all scheduled flight segments of foreign air carriers in, to, or from the United States).1 E-cigarettes typically contain a cartridge or chamber, which contain an atomizer or heating element, a battery and a liquid solution. Most often e-cigarettes contain liquid nicotine but they may contain other chemicals. When a user inhales, the heating element aerosolizes the liquid solution. This produces an aerosol,2 which requires an inhalation and exhalation similar to smoking cigarettes. In addition to nicotine, e-cigarette aerosol can contain heavy metals, ultrafine particulates that can be inhaled deep into the lungs, and cancer-causing agents like acrolein. Secondhand aerosol that is exhaled by users may reduce air quality and is potentially harmful to health. Sometimes e-cigarettes are designed to look like traditional cigarettes, but at times they are also made to look like cigars, pipes, and even everyday products such as pens.

The increased promotion and availability of e-cigarettes raised the issue of whether the statutory ban on smoking on scheduled passenger flights in section 41706 and the existing regulatory prohibition on the smoking of tobacco products in part 252 applied to e-cigarettes. In the NPRM, we explained that the Department views the existing statutory and regulatory framework to be sufficiently broad to include the use of e-cigarettes; however, the purpose of the proposal was to clarify and codify this position. In addition to relying on section 41706 as our statutory authority for the rule, we also relied on 49 U.S.C. 41702, which requires air carriers to provide safe and adequate interstate air transportation. Another Federal statute, 49 U.S.C. 41712, which prohibits airlines from engaging in unfair or deceptive practices or unfair methods of competition in air transportation or the sale of air transportation, provides additional support for the e-cigarette rule. (See “Authority to Regulate E-Cigarettes under 49 U.S.C. 41712,” below).

The NPRM stated our position that the reasons supporting the statutory and regulatory ban on smoking also apply to a ban on e-cigarettes: Improving air quality within the aircraft, reducing the risk of adverse health effects on passengers and crewmembers, and enhancing aviation safety and passenger comfort. We also discussed Sottera, Inc. v. Food & Drug Administration, 627 F.3d 891 (D.C. Cir. Dec. 7, 2010), in which the court held that the Food and Drug Administration (FDA) could not regulate “customarily marketed” electronic cigarettes as drugs or devices under the Federal Food, Drug, and Cosmetic Act (FDCA), but that the FDA could regulate the e-cigarettes at issue as tobacco products under the FDCA as amended by the Family Smoking Prevention and Tobacco Act of 2009 (Tobacco Control Act).

The FDA has express authority under the Tobacco Control Act to regulate only the following tobacco products at this time: cigarettes, cigarette tobacco, roll-your-own tobacco, and smokeless tobacco. The Tobacco Control Act permits the FDA to extend its tobacco products authority to other types of tobacco products by issuing regulations. On April 25, 2014, the FDA issued a proposed rule to extend FDA's tobacco product authorities to include e-cigarettes and other types of tobacco products.3

Similarly, in our NPRM, we proposed to amend DOT's smoking rule so it clearly covers e-cigarettes by including a definition of smoking. For purposes of this rule, we proposed to define smoking as: “the smoking of tobacco products or use of electronic cigarettes and similar products designed to deliver nicotine or other substances to a user in the form of a vapor,” with an exemption for “the use of a device such as a nebulizer that delivers a medically beneficial substance to a user in the form of a vapor.”

In the NPRM, the Department sought comment on: (1) Whether the definition of “smoking” in the proposed rule text was so broad that it might unintentionally include otherwise permissible medical devices that produce a vapor; (2) concerns over, and benefits of, the proposal to clarify the prohibition in part 252 to explicitly cover e-cigarettes; and (3) any other information or data relevant to the Department's decision.

In addition, the NPRM also stated the Department's intent to consider whether to extend the ban on smoking, including e-cigarettes, to charter flights with aircraft that have a seating capacity of 19 or more passenger seats—i.e., those flights that generally require a flight attendant.4 The Department proposed banning smoking on charter flights with 19 or more passenger seats, citing public health concerns for flight attendants who may be subject to secondhand smoke on board such charter flights. Thus, the Department sought comment on the benefits and drawbacks of extending the smoking ban to charter flights that have a seating capacity of 19 or more passenger seats.

A ban on smoking on charter flights where a flight attendant is a required crewmember was enacted into law on February 14, 2012, in the FAA Modernization and Reform Act of 2012, Public Law 112-95. Section 401 of the Act amended section 41706, the existing smoking statute, by broadening the smoking prohibition to include aircraft in nonscheduled passenger interstate, intrastate and foreign air transportation, if a flight attendant is a required crewmember on the aircraft (as determined by the Federal Aviation Administration or a foreign government).

In response to the NPRM, the Department received over 1000 comments, the majority of which were in response to the e-cigarette issue. A majority of the comments received on the NPRM were from individuals. In addition, the Department received comments from the following entities: U.S. carrier and foreign carrier associations, members of Congress, pilot associations, flight attendant associations, consumer organizations, advocacy and special interest organizations, local governments, and medical associations.

The Department has carefully reviewed and considered the comments received. The commenters' positions are summarized below.

In the NPRM, we asked whether the definition of “Smoking” in the proposed rule text is too broad in that it may unintentionally include otherwise permissible medical devices that produce a vapor. We proposed the following definition:

The Air Transport Association of America (now Airlines for America (A4A)), International Air Transport Association (IATA), Regional Airline Association (RAA), and Air Carrier Association of America (ACAA) filed a joint comment stating their view that the proposed definition was adequate as written, and that it would not unintentionally include otherwise permissible medical devices. Also, the American Thoracic Society suggested that the Department consider explicitly stating in its definition that FDA-approved medical devices, such as nebulizers, metered dose inhalers, ventilators, supplemental oxygen and other respiratory assistive devices meeting Federal Aviation Administration (FAA) requirements, are not covered by the definition of smoking.

With respect to comments received from individuals, there was a concern raised by some that the definition could include all inhalers, asthma inhalers, or permissible nicotine replacement products. Some suggested that “medically beneficial” is too broad because in some cases, nicotine may be medically beneficial. Therefore, the commenters suggest changing the language to “medically necessary substances,” “FDA-approved devices,” or “prescription drugs.” One commenter stated that the definition is circular because it uses “smoking” in the definition of “smoking.” In addition, some commenters suggested it would be clearer to add the word “harmful” before “vapor.”

Finally, one commenter suggested the following definition as an alternative to the proposed rule text: “any inhalation or exhalation of a tobacco product, electronic cigarette, or similar products that emits a smoke, mist, vapor, etc., with the exception of medical devices such as nebulizers.”

Based on the comments received, we have decided to edit our proposed definition of smoking to read as follows:

We feel this change more succinctly addresses our targeted prohibition and makes clear that products which meet the definition of a medical device (other than electronic cigarettes) in section 201(h) of the Federal Food, Drug and Cosmetic Act, such as nebulizers, are exempt. The use of electronic cigarettes would fall within the smoking ban even if electronic cigarettes were to meet the definition of a medical device.

In the NPRM, we explained that we interpret the existing part 252 to ban the use of e-cigarettes on all flights and that we were seeking to codify this interpretation. We solicited comments about the potential benefits or harm of this proposal.

In their joint comment, A4A, IATA, RAA, and ACAA stated their support for the proposed ban, arguing that e-cigarettes should be treated the same as other tobacco products. These organizations voiced concern over the ingredients in e-cigarettes, which could possibly cause airway irritation for users and others nearby. They also named design flaws, inadequate labeling, quality control, and health issues as concerns. Further, the commenters stated, “in fact, all carriers already prohibit e-cigarette use in the cabin for the same reasons the Department provided.”

The Air Line Pilots Association (ALPA) stated its belief that the proposed rule would prevent degradation of the air quality onboard aircraft, and asserted that the health risks for human use need to be more thoroughly understood for both users and non-users who are subjected to “secondhand smoke.” ALPA also noted the possibility of passenger and crewmember confusion in differentiating e-cigarettes from tobacco cigarettes, as the two products can be difficult to distinguish from each other.

The Association of Flight Attendants (AFA) reported that it has received occasional reports of in-flight passenger use of the devices and some confusion among travelers regarding airline policies. AFA stated its support for treating the devices the same as traditional cigarettes. AFA believes that DOT is appropriately applying a precautionary principle because the toxicity of e-cigarettes is not well understood. In addition, the Association of Professional Flight Attendants, representing flight attendants for American Airlines, submitted a comment stating that American Airlines currently bans e-cigarettes, but nonetheless still urged DOT to promulgate a final rule to create consistency across the industry. The Association further noted that the science behind the effects that e-cigarettes may have on third parties is, at best, inconclusive, and that they adamantly advocate for a healthy environment for all flight attendants.

The Independent Pilots Association, the bargaining unit for the pilots of United Parcel Service, stated its support for the rule on safety grounds (based on the inherent dangers of using lithium battery powered e-cigarettes onboard aircraft). However, it also expressed the view that DOT has created a double standard of safety regulations by carving out less safe standards for cargo aircraft operations, and urged that the rule be applied to all aircraft.

We received comments from a number of medical associations, each voicing their support for the proposed ban. The American Academy of Pediatrics (AAP) commented that it was unaware of any data which would suggest that it is safe for children as passengers in aircraft to be in close proximity to exhaled “vapors” from e-cigarettes. Further, the AAP noted that FDA data demonstrate that e-cigarette vapor includes known toxicants, carcinogens, and irritants of the respiratory tract. The American Thoracic Society (ATS) commented that while e-cigarette manufacturers claim that the devices are a reduced-risk product, there is little evidence to support this claim, and that the limited research on these products has found significant variation between manufacturers' attestations and the actual dose of nicotine delivered by the products. ATS further stated that it is not aware of any studies that suggest exhaled e-cigarette vapors are risk-free and that the use of these devices in the confined space of an airline cabin should be viewed with extreme caution. The California Medical Association (CMA) stated its support for the prohibition of the use of any nicotine delivery devices not approved by the FDA in places where smoking is already prohibited by law. CMA also noted that several local and State governments have banned e-cigarettes in indoor public spaces and workplaces. The Oncology Nursing Society expressed its support for the ban, citing evidence for the presence of toxic chemicals in e-cigarette aerosol.

The Department also received a letter of support for the proposed rule signed by seven members of the U.S. Senate.5 The Senators urged a strong final rule, and stated that the devices raise significant public health concerns. They also expressed concern with respect to the manufacturing and quality control of e-cigarettes. In sum, the Senators stated that the proposed rule recognizes the rights of airline passengers to a safe travel environment and promotes public health.

In addition, we received two comments from local governments. The New York City Department of Health and Mental Hygiene (DOHMH) submitted a comment stating its concern that e-cigarettes are not FDA-approved and may contain chemicals that could harm users or those around them, especially in confined spaces such as aircraft. DOHMH noted that the proposed rule would make enforcement of the existing smoking ban easier, as e-cigarettes can be difficult to distinguish from traditional cigarettes. Seattle and King County, Washington, which passed a regulation prohibiting the use of e-cigarette devices in places where smoking is prohibited by law, commented that a precautionary approach is warranted as the products are relatively new to the market and research has not conclusively identified the components of the vapor that are exhaled.

We received several comments from other advocacy organizations. The American Cancer Society, American Heart Association, American Lung Association, Campaign for Tobacco-Free Kids, and Legacy submitted a joint comment in support of the proposed rule, stating that in the context of smoking prohibitions on aircraft, e-cigarettes should be considered the same as traditional cigarettes. The organizations commented that the health consequences of e-cigarette use are unknown, and therefore restrictions on their use inside aircraft are appropriate until it can be shown with a high degree of certainty that they pose no harm to non-users. The organizations also argued that allowing the use of e-cigarettes on aircraft would create significant confusion for passengers and enforcement challenges for airline personnel, citing an incident on a Southwest Airlines flight on July 13, 2011, where a man was arrested for pelting a flight attendant with peanuts and pretzels after being asked to put away his e-cigarette upon attempting to smoke the device. The organizations also argued that DOT's proposed rule is consistent with the decision in Sottera. Finally, the organizations argued that prohibiting e-cigarette use on aircraft promotes the health goal of reducing the use of tobacco products through the promotion of non-smoking environments.

Americans for Nonsmokers' Rights (ANR) submitted a comment in support of the proposed rule, stating its belief that e-cigarettes should be prohibited in all places where the smoking of tobacco products is prohibited. ANR stated that its primary reason for supporting the ban is that the devices' components raise significant health concerns. ANR also asserted that e-cigarettes can undermine and cause confusion over compliance with smoke-free rules when used on airplanes. Finally, ANR noted that there are at least 25 municipalities that define “smoking” to include the use of e-cigarettes and prohibit their use in workplaces and public places. Arizonans for Nonsmokers' Rights expressed the view that e-cigarettes posed respiratory hazards to non-users, and that permitting e-cigarettes aboard aircraft may infringe on the rights of individuals with respiratory disabilities.

The Kentucky Center for Smoke-free Policy submitted a comment strongly in support of the proposed ban, stating that although there is a need for rigorous scientific study of e-cigarettes, it is known that the vapor emitted from the devices contains several volatile organic compounds (e.g., acetone, styrene, and ethyl alcohol acetaldehyde) that can cause negative health effects. The Kentucky Center also commented that the use of e-cigarettes on aircraft may lead people to believe that smoking is permitted, and may undermine smoke-free policies. The Tobacco Free Coalition of Pinellas County (FL) expressed similar health concerns.

FlyersRights.org, a non-profit airline passenger rights advocacy organization, conducted a survey of its members to gauge public opinion on the proposed rule. The survey garnered 987 responses, and those who responded voted overwhelmingly (81.4%) in favor of the NPRM. Support was generally based on the grounds of public health or cabin comfort. Those opposing the ban were almost evenly divided in their reasoning, with some doubting that the e-cigarettes pose any risk, others believing that current research is insufficient to support the regulation, and still others objecting generally to the proposed ban.

The following organizations submitted comments in opposition to the proposed rule. Smokin' Vapor LLC submitted a comment in opposition stating that e-cigarettes do not burn any matter, and that their ingredients (water, flavorings, nicotine—when chosen—and propylene glycol) are safe, and even beneficial to users in some instances. The National Vapers Club submitted a comment stating that e-cigarettes do not produce smoke and therefore do not create the byproducts of combustion. National Vapers stated that banning e-cigarettes is akin to banning the use of Nicotrol inhalers. The organization added that e-cigarettes have not been shown to cause any harm to bystanders; until such harm is proven, the club believes that the ban is unfounded. National Vapers also asserted that it is the responsibility of airlines to explain the use of e-cigarettes to those who are uncomfortable with them, and to alleviate the concerns of those who are not familiar with the products. In addition, Smokers Fighting Discrimination, Inc., submitted a comment in opposition to the proposed ban, stating that e-cigarettes emit water vapor, but not smoke.

Smokefree Pennsylvania submitted a comment that outlined several reasons for its opposition to the proposed ban. The organization challenged the Department's statutory authority to promulgate the rule under 49 U.S.C. 41706. The organization reasoned that the statute does not authorize the ban of e-cigarettes because vapor does not involve combustion, and thus is vastly different from tobacco smoke. Smokefree Pennsylvania stated that the Department falsely alleged that using an e-cigarette is the same as smoking. The organization also challenged the Department's statutory authority under 49 U.S.C. 41702, stating that there is no evidence that e-cigarettes have harmed anyone or that they pose any health or safety risks to users or non-users. The organization alleged that the NPRM deceives the public into believing that e-cigarettes emit smoke and pose health risks to users and non-users similar to those posed by cigarette smoke. Furthermore, it argued that none of the studies cited by the Department had found any hazardous levels of chemicals in e-cigarettes. The organization also asserted that the proposal is unenforceable, as e-cigarette consumers can use the products discreetly without anyone noticing because the vapor that is emitted is not visible. As evidence of this assertion, the organization stated that there have been no citations issued for violating indoor e-cigarette usage bans in New Jersey, Seattle, or other jurisdictions where e-cigarettes have been banned. Finally, the organization noted that violators of the Department's proposed rule would face a $3,300 fine, which the organization claimed is excessive and may violate the 8th Amendment's prohibition against cruel and unusual punishment.

The Consumer Advocates for Smoke-Free Alternatives Association (CASAA) and the Competitive Enterprise Institute (CEI) submitted a comment urging the Department to withdraw its proposed ban, and cited reasons for its opposition similar to those offered by Smokefree Pennsylvania. CASAA and CEI challenged the Department's statutory authority, arguing that the statutory ban on in-flight smoking, 49 U.S.C. 41706, does not extend to smoke-free products such as e-cigarettes. Also, these organizations argued that the Department's reliance on 49 U.S.C § 41702 is misplaced, as there is no research indicating that e-cigarette vapor, with or without nicotine, is harmful to users or bystanders. The organizations cited a Health New Zealand report where e-cigarette mist was tested for over 50 cigarette smoke toxicants, and no such toxicants were found. CASAA and CEI additionally argued that the Department has failed to perform a cost-benefit analysis and has not demonstrated that the ban would produce any benefits; the American Aviation Institute echoed this view. Lastly, CASAA and CEI stated that the possible civil penalty of $3,300 for violating part 252 is not justified, as e-cigarettes would not impair cabin air quality or cause damage to aircraft seats or carpeting.

We now turn to comments received from the public. By the end of the comment period on November 15, 2011, the Department received approximately 700 total comments; approximately 500 of those were from individuals opposed to the proposed ban. (Many of the comments received in opposition to the proposed rule were identical.) The purported lack of DOT jurisdictional authority to create the proposed rule and lack of research, data, evidence, or proof to support the rule were common themes. Many felt that the Department was overstepping its statutory authority, and argued that e-cigarettes are not smoked, but “vaped” (producing water vapor), and as such do not fall within the smoking statute, section 41706. Also, many felt that the Department failed to justify the proposed ban under section 41702 because it did not provide any evidence that e-cigarettes are harmful to bystanders. Some individuals asserted that there have not been any reported health issues with respect to the devices and stated that lack of evidence cannot be the basis for a rule. Many argued that the proposed rule was an example of unnecessary government regulation, and that the better approach would be to allow the industry to devise its own rules for the products. It was also argued that the proposed regulation would be unenforceable because users can easily hide their use of e-cigarettes. Finally, some argued that the civil penalty associated with a violation of the proposed rule is excessive and illegal under the 8th Amendment.

Supporters of the rule generally viewed the Department as having the appropriate authority and stated that the unknown risk and potential harmful effects justified the ban. Many voiced concern over the air quality aboard aircraft, stating that the rights and public health concerns of passengers who are not e-cigarette users should be protected, as these people do not have the option of leaving the space. Supporters also raised the point that potentially vulnerable passengers, such as children, the elderly, and people with asthma should be protected from the effects of e-cigarette vapor. Another reason cited in support of the rule was the elimination of potential passenger and crew confusion; supporters argued that a ban on both traditional cigarettes and e-cigarettes would make enforcement of the smoking regulation easier for crewmembers, because e-cigarettes resemble traditional cigarettes. It was also stated that this proposed rule would create only minimal inconvenience for smokers and “vapers,” as the existing smoking ban on aircraft has been in place since 2000.

In more recent years, the Department has noted a substantial increase in individual comments supporting the ban. Of the approximately 350 additional individual comments received after the close of the comment period, approximately 60 opposed the ban while approximately 290 supported it. Most commenters supporting the ban cited health concerns, and expressed the view that e-cigarette aerosol was either already demonstrated to be harmful, or should be banned unless it is proven to be safe. A number of individuals expressed impatience at the Department's slow progress in implementing the ban.

We note that several commenters, both organizations and individuals, cited safety reasons as additional grounds for supporting the proposed ban (e.g., potential fire concerns and hazards associated with the lithium batteries that power the devices).

After fully considering the comments received, the Department has decided to amend its existing smoking rule to explicitly ban the use of e-cigarettes on all flights in passenger interstate, intrastate and foreign air transportation where other forms of smoking are banned. We are primarily concerned with the potential adverse health effects of secondhand exposure to aerosols generated by e-cigarettes, particularly in the unique environment of an aircraft cabin. We further believe that the ban on the use of e-cigarettes fulfills the statutory mandates of sections 41706, 41702, and 41712. We do not address in this rulemaking any safety-related issues that may exist with regard to the use of e-cigarettes aboard aircraft. The Pipeline and Hazardous Materials Safety Administration (PHMSA) regulates hazardous materials safety 6 and the FAA regulates smoking aboard aircraft under its safety mandate. See 14 CFR 121.317, 129.29, 135.127.

We begin with section 41706, the statutory smoking ban. With respect to domestic air transportation, section 41706(a) provides that “an individual may not smoke in an aircraft in scheduled passenger interstate or intrastate air transportation; or in an aircraft in nonscheduled passenger interstate or intrastate air transportation if a flight attendant is a required crewmember on the aircraft.” Similarly, with respect to foreign air transportation, section 41706(b) provides that “the Secretary of Transportation shall require all air carriers and foreign air carriers to prohibit smoking in an aircraft in scheduled passenger foreign air transportation; and in an aircraft in nonscheduled passenger foreign air transportation, if a flight attendant is a required crewmember on the aircraft.”

While section 41706 does not define `smoking,” nothing in the text of section 41706 suggests that the definition of “smoking” should be limited to the combustion of traditional tobacco products. Instead, Congress vested broad authority in the Department to implement the statutory smoking ban. Specifically, section 41706(d) states that “the Secretary shall provide such regulations as are necessary to carry out this section.” We interpret section 41706 as a whole as vesting the Department with the authority to define the term “smoking,” and to refine that definition as necessary to effectuate the purpose of the statute while adapting to new technologies and passenger behavior. Like section 41706, the Department's regulation in 14 CFR part 252 did not contain a definition of “smoking” prior to the issuance of this final rule. However, the Department has previously taken the position that the prohibition against smoking in 49 U.S.C. 41706 and 14 CFR part 252 should be read to ban the use of electronic cigarettes on U.S. air carrier and foreign air carrier flights in scheduled intrastate, interstate and foreign air transportation, a position that was noted in connection with a June 17, 2010 hearing before the Senate Committee on Commerce, Science and Transportation. This final rule formalizes the Department's interpretation by defining smoking to explicitly include the use of e-cigarettes.

Some commenters contend that section 41706 cannot be relied upon to reach this result because it prohibits smoking, and e-cigarettes are “vaped” and produce a vapor. Although e-cigarettes typically do not undergo combustion, they do produce an aerosol of chemicals and require an inhalation and exhalation action similar to that which is required when smoking traditional cigarettes. E-cigarettes are generally designed to look like and be used in the same manner as conventional cigarettes. Further, the purpose behind the statutory ban on smoking aboard aircraft in section 41706 and the regulatory ban on smoking tobacco products in part 252 were to improve cabin air quality, reduce the risk of adverse health effects on passengers and crewmembers, and enhance passenger comfort. The in-cabin dynamics of e-cigarette use are similar enough to traditional smoking to necessitate including e-cigarette use within the definition of “smoking.” Like traditional smoking, e-cigarette use introduces a cloud of chemicals into the air that may be harmful to passengers who are confined in a narrow area within the aircraft cabin without the ability to avoid those chemicals.

A recent study published in the journal Nicotine & Tobacco Research found that e-cigarettes are a source of secondhand exposure to nicotine but not to combustion toxicants.7 The conclusions of the study were that using e-cigarettes in indoor environments may involuntarily expose non-users to nicotine, and that more research is needed to evaluate the health consequences of secondhand exposure to nicotine, especially among vulnerable populations such as children, pregnant women, and people with cardiovascular conditions. More recent research has determined that persistent residual nicotine on indoor surfaces from e-cigarettes can lead to third hand exposure through the skin, inhalation, and ingestion long after the air itself has cleared.8

Additionally, we find it significant that the three medical associations that submitted comments cited the unknown health risks of exposure to e-cigarette aerosol in a confined space as a reason for concern. Also citing public health concerns were the American Cancer Society, American Heart Association, American Lung Association, Campaign for Tobacco-Free Kids, and Legacy. In addition, each comment received from the airline industry voiced strong support for the rule, based on the unknown ingredients in the devices and their possible health consequences.

While the specific hazards of e-cigarette aerosol have not yet been fully identified, the Department does not believe that it would be appropriate to exempt e-cigarettes from the ban for now, pending a more definitive catalog of those hazards. Since the NPRM was issued, research continues to undermine claims that the use of e-cigarettes would have no adverse health implications on users or others who are nearby. Research has detected toxic chemicals such as formaldehyde and acetaldehyde in the aerosol from certain e-cigarettes.9 The aerosol was also found to contain acrolein, which can cause irritation to the nasal cavity and damage to the lining of the lungs, and may contribute to cardiovascular disease in cigarette smokers.10 Another study identified 22 chemical elements in e-cigarette aerosol, including lead, nickel, and chromium, among others that can cause adverse health effects in the respiratory and nervous systems.11

Some studies have found that lower levels of toxicants are observed in e-cigarette aerosols than in combusted tobacco smoke.12 However, research on near real-use conditions of e-cigarettes has found increased indoor air levels of polycyclic aromatic hydrocarbons; 1,2-propanediol; 1,2,3-propanetriol; glycerine; nicotine; fine particles; ultrafine particles; particle number concentrations; and aluminum, all of which raise health concerns.13 We recognize that the aerosol that is exhaled by users of some e-cigarettes and similar electronic apparatus may not pose as much harm as smoke emitted from combusted tobacco products. However, given that studies do indicate that both nicotine and other toxicants are found in the exhaled aerosol, limiting exposures must be considered. Because the potential for harm to consumers from second hand aerosol is even greater in the closed environment of an aircraft, we believe a precautionary approach is warranted. In sum, releasing an aerosol that may contain harmful substances or respiratory irritants in a confined space, especially when those who are at a higher risk are present, is contrary to the statutory ban on smoking aboard aircraft.

We also find an independent source of authority for this rulemaking in section 41702, which mandates safe and adequate interstate air transportation. The Department's predecessor, the Civil Aeronautics Board (CAB), relied upon section 404(a) of the Federal Aviation Act of 1958 (subsequently re-codified as 41702), requiring air carriers “to provide safe and adequate service, equipment and facilities,” as authority to adopt its first regulation restricting smoking on air carrier flights (ER-800, 38 FR 12207, May 10, 1973). At that time, CAB issued a “smoking rule” under its economic regulations titled, “Part 252—Provision of Designated `No Smoking' Areas Aboard Aircraft Operated by Certificated Air Carriers,” which mandated designated “no smoking” areas on commercial flights. See 38 FR 12207 (May 10, 1973). The rule predated a Congressional ban on smoking on scheduled flights. In the preamble to the 1973 rule, the CAB cited a joint study by the FAA and the then Department of Health, Education, and Welfare that concluded that the low levels of contaminants in tobacco smoke did not represent a health hazard to nonsmoking passengers on aircraft; however, the study found that a significant portion of the nonsmokers stated that they were bothered by tobacco smoke. The CAB stated, “unlike persons in public buildings, nonsmoking passengers on aircraft may be assigned to a seat next to, or otherwise in close proximity to, persons who smoke and cannot escape this environment until the end of the flight.” The principal basis for the 1973 smoking rule was passenger discomfort issues. Just as the CAB relied on the “adequate” prong of the predecessor to section 41702 to adopt a smoking ban in 1973, the Department believes that it has the authority today to ban the use of e-cigarettes under section 41702 to ensure “adequate” service by reducing a similar kind of passenger discomfort. In our view, passenger discomfort arises from at least two aspects of e-cigarette aerosol exposure. First, the non-user passenger may feel the direct effects of inhaling the aerosol, which, as noted above, has been shown to contain respiratory irritants. More broadly, passengers may reasonably be concerned that they are inhaling unknown quantities of harmful chemicals, and that they will not be able to avoid the exposure for the duration of the flight.

In addition to the Department's authority under sections 41716 and 41702, the Department has the authority and responsibility to protect consumers from unfair or deceptive practices in air transportation under 49 U.S.C. 41712. Using this authority, the Department has found practices to be “unfair” if they are harmful to passengers but could not be reasonably avoided by them. For example, the Department relied upon section 41712 and its “unfair” practice component when promulgating the “Tarmac Delay Rule,” 14 in which the Department addressed problems consumers face when aircraft sit for hours on the airport tarmac. In doing so, the Department considered the harm to the consumer and the fact that the harm was unavoidable. The Department concluded that regulatory action was necessary and that a three-hour time limit is the maximum time after which passengers must be permitted to deplane from domestic flights given the cramped, close conditions in aircraft and the inability of passengers to avoid lengthy tarmac delays. Here, as with the tarmac delay rule, the Department believes that the practice of allowing use of e-cigarettes onboard aircraft would be potentially harmful to passengers and there is no way for the passenger to reasonably avoid the harm. The harms include the potential for decreased cabin air quality, confusion about whether the passenger is being exposed to traditional cigarette smoke, and possible health risks arising from exposure to the chemicals contained in e-cigarette aerosol. These harms are unavoidable because passengers who do not wish to be exposed to e-cigarette aerosol cannot escape this environment until the end of the flight.

In sum, we are amending our existing smoking regulation to explicitly ban the use of e-cigarettes because we view the ban to be consistent with the statutory mandates of sections 41706, 41702 and 41712. We do not believe that it is appropriate, as some commenters have suggested, to allow the airline industry to adopt its own standards with respect to the inclusion of electronic cigarettes within the prohibition on smoking. We recognize that the industry has generally banned the use of electronic cigarettes on flights, either as a matter of preference or in recognition of the Department's well-publicized enforcement policy. On the other hand, we believe that without a clear, uniform regulation, some carriers may feel free to adopt policies that allow the use of e-cigarettes onboard aircraft. In light of the potential health hazards posed to flight attendants and fellow passengers, as well as the potential diminution in air cabin quality posed by the use of electronic cigarettes in an aircraft cabin, we do not believe that a free-market approach is appropriate or desirable.

An additional benefit of this rule is that it eliminates passenger or crewmember confusion with regard to the permissibility of e-cigarettes by creating an explicit ban. In our notice, we stated that through Congressional correspondence, anecdotal evidence, and online sources, including blogs, we were made aware that some passengers have attempted to use e-cigarettes onboard aircraft. The Association of Flight Attendants also stated in comments submitted to the Department that it receives occasional reports of in-flight passenger use and confusion among travelers regarding airline policies. In the absence of regulation, e-cigarette users may believe that an airline's policy banning e-cigarettes is merely a preference, and that they may continue to use such devices because they are not prohibited by federal law. This rule would eliminate any such arguments with respect to the use of e-cigarettes, and provide flight crew with the clear message that e-cigarettes are placed firmly on the same footing as traditional tobacco products. The traveling public would also have the benefit of knowing with certainty that e-cigarettes are prohibited onboard aircraft, Moreover, to the extent that carriers may be inclined to permit e-cigarettes on the ground that the Department's enforcement policy is not consistent with the regulatory text, this rule would preclude that option.

Section 401 of the FAA Modernization and Reform Act of 2012 prohibited smoking on domestic nonscheduled (charter) passenger flights that require a flight attendant, and directed the Department to prohibit smoking on nonscheduled (charter) passenger flights in foreign air transportation that require a flight attendant. In the NPRM in this proceeding, we sought comment on the issue of banning smoking on most charter flights. We received few comments on this issue; however, those that did comment overwhelmingly supported the proposal. The Association of Flight Attendants (AFA) stated its support for the ban, claiming that it would be beneficial to the occupational health of flight attendants and the health of the traveling public. AFA stated that there is virtually universal agreement that exposure to environmental tobacco smoke is harmful to health, and requested that DOT acknowledge these findings and expand the smoking ban to all charter operations.

The Association of Professional Flight Attendants, representing American Airlines flight attendants, stated its support of the ban to create consistency across the industry and argued that no flight attendant should be subjected to cigarette smoke on an airplane, given what is known about secondhand smoke.

The American Cancer Society, American Heart Association, American Lung Association, Campaign for Tobacco-Free Kids, and Legacy stated that the health effects of secondhand smoke are well established in scientific literature. The organizations argued that charter flight staff should not be exposed at their workplace to secondhand smoke, which has been shown to increase risk of heart disease, stroke, and cancer. These organizations expressed their concern that charter flight passengers are potentially exposed to secondhand smoke for extended periods of time in a confined space. The organizations argued that there is no safe level of exposure to secondhand smoke, regardless of the type of plane or flight one takes, and that the current regulations do not effectively protect public health. We received a few comments from the public on this issue, with most stating their support for the proposal and some suggesting extending the ban to all flights.

We are amending the rule text of part 252 to implement section 401 of the FAA Modernization and Reform Act. Section 401 requires U.S. and foreign air carriers to ban smoking in nonscheduled passenger interstate, intrastate, and foreign air transportation where a flight attendant is a required crewmember. The amendment to part 252 is necessary to harmonize the Departmental regulation with the new statutory requirement.15 The 2011 NPRM sought comment on banning smoking on charter flights that use aircraft with 19 or more passenger seats. In view of the statutory smoking ban in section 401 that was signed into law in 2012, this final rule conforms part 252 to the requirement in the statute. Consequently, this new rule bans smoking on all nonscheduled passenger air transportation where a flight attendant is a required crewmember of the aircraft.

The rule also continues a ban on smoking on nonscheduled passenger air transportation where a flight attendant is not a required crewmember of the aircraft, except for single entity charters and on-demand services of air taxi operators. Under the existing sections 252.2 and 252.13, U.S. carriers are required to ban smoking on all flights (scheduled and charter) that use aircraft with 30 or fewer passenger seats except for the on-demand services of air taxi operators. Section 252.19 of the existing rule permits smoking on single-entity charter flights of U.S. air carriers. In other words, under the existing rule, smoking is allowed on single-entity charter flights and on-demand services of air taxi operators regardless of aircraft size. For U.S. carriers, smoking is prohibited on all other charter flights that use aircraft with 30 or fewer passenger seats.

If an aircraft has more than 30 seats, under section 252.7 of the existing rule the air carrier operating the charter flight (other than single-entity charters or on-demand services of air taxi operators) must establish a non-smoking section for each class of service. As an organizational matter, we are eliminating this section as it is no longer needed because section 401 bans smoking on charter flights where a flight attendant is a required crewmember. All charter flights covered under section 252.7 would require a flight attendant as that section only applies to aircraft with more than 30 seats.

The only change that is not directly required by the statute is eliminating the requirement in the existing rule for carriers to give notice to each passenger on a single-entity charter of the smoking procedures for that flight. It would be of limited usefulness to have such a requirement where smoking on single-entity charters would not be banned by this rule (i.e., on aircraft where a flight attendant is not a required crewmember, which essentially means aircraft with 19 seats or less).

This final rule has been determined to be significant under Executive Order 12866 and the Department of Transportation's Regulatory Policies and Procedures. It has been reviewed by the Office of Management and Budget in accordance with Executive Order 12866 (Regulatory Planning and Review) and Executive Order 13563 (Improving Regulation and Regulatory Review) and is consistent with the requirements in both orders.

The Final Regulatory Evaluation, included in this section, qualitatively evaluates the benefits and costs of the final rule. Both benefits and costs are expected to be very small because the final rule only represents a modest change, if any, to existing industry practice. Nonetheless, the Department believes that the rule is necessary for the reasons noted below. As discussed below, DOT was unable to find any airline that explicitly states that it allows smoking of any type or includes accommodating smokers in its business plan, including e-cigarettes and their users, and as such, would be affected by this rule. In fact, the overwhelming majority of passenger seats are on scheduled flights where smoking traditional cigarettes is already banned. Moreover and again as discussed below, commercial airlines have interpreted the existing DOT smoking ban to cover e-cigarettes and do not allow their use. Due to the inability to identify any specific airlines that would have to change their policies in response to the final rule, it was not possible to quantify benefits or costs. However, DOT does not rule out the possibility that a few airlines may at times provide services that could be affected by the rule, and therefore provides a qualitative analysis of potential benefits and costs for those situations.

In April 2000, the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (Pub. L. 106-181) was signed into law. Section 708 of the Act amended 49 U.S.C. 41706 to impose a ban on smoking on all scheduled passenger interstate, intrastate, and foreign air transportation. DOT subsequently incorporated this ban in its rule on smoking on commercial airline flights. Because of confusion as to whether the use of e-cigarettes was allowed on aircraft, in September 2011, DOT issued a NPRM (see 79 FR 57008), which proposed to amend 14 CFR part 252 to explicitly include the use of e-cigarettes in the smoking ban. Specifically, the NPRM proposed to define smoking as, “the smoking of tobacco products or use of electronic cigarettes and similar products designed to deliver nicotine or other substances to a user in the form of vapor.” The NPRM also considered whether to extend the smoking ban (including e-cigarettes) to nonscheduled passenger flights or air carriers and foreign air carriers between points in the United States and between the United States and any foreign point with aircraft that have a designed seating capacity of 19 or more passenger seats.

In February 2012, the FAA Modernization and Reform Act of 2012 (Pub. L. 112-95) (the Act) was signed into law. Section 401 of the Act amended 49 U.S.C. 41706 to extend the smoking prohibition to aircraft in nonscheduled passenger interstate, intrastate, and foreign air transportation, offered by both U.S. and foreign carriers, if a flight attendant is a required crewmember.

This final rule primarily makes two regulatory changes. First, it amends the existing smoking ban in 14 CFR part 252 to explicitly ban the use of e-cigarettes whenever smoking is banned by revising the definition of smoking to cover the use of e-cigarettes. Second, the rule amends 14 CFR part 252 to implement section 401 of the FAA Modernization and Reform Act and extends the smoking ban to flights in nonscheduled interstate, intrastate, and foreign passenger air transportation where a flight attendant is required.

In 2014, there were a total of 104 U.S. carriers and 151 foreign air carriers providing service in the United States. About 75 percent of these carriers provided scheduled service and the remaining 25 percent provided only charter service. However, the overwhelming majority of air passenger service is provided by the 75 percent of scheduled service carriers; in 2014, roughly 99 percent of U.S. passenger enplanements were associated with scheduled flights.16 Table A.1 provides an overview of the carriers providing service in the United States in 2014.

14 CFR part 252 currently bans smoking on all scheduled passenger interstate, intrastate, and foreign air transportation. Thus, as noted above, the overwhelming majority of flights are covered by the general smoking ban (75 percent of carriers representing 99 percent of passenger enplanements). No regulatory definition of “smoking” is included in the existing Part 252, and questions have emerged regarding its applicability to e-cigarettes. DOT has stated that e-cigarettes are covered by its existing smoking rule, part 252.17 Based upon DOT review of individual Web sites, U.S. and foreign carriers generally appear to be in compliance with this interpretation and do not allow their use. While some carriers provide no explanation for their interpretation, some airlines cite a “nuisance factor,” concerns for triggering smoke detection equipment, and concerns for other passengers' health. Exhibit A.1 lists some typical examples of e-cigarette policies taken from a select number of the 104 individual U.S. carrier and 151 foreign carrier Web sites.

For the remaining 25 percent of carriers providing only charter service (representing about one percent of passenger enplanements), smoking is not prohibited by law in all cases. On flights where smoking is not banned by law, airlines must have a non-smoking section and must accommodate in that section every passenger who has complied with the airline's check-in deadline and who wishes to be seated there.

Apparently, however, charter airlines have taken a direction similar to rental car companies and hotels, where nonsmoking policies are now the norm.18 Finding a charter that allows in-flight smoking or guarantees a smoker's right to engage in the activity has become difficult, if not impossible. According to one Web site that assists in booking charters:

There are incentives for charter airlines to voluntarily adopt smoking bans despite the lack of a legal requirement. In the case of domestic charters, assuring the accommodation of nonsmoking passengers in a nonsmoking section in accordance with the law could create some planning difficulties unless a service provider knows in advance the smoking status of each passenger; it is easier and requires less planning to simply disallow the activity. Moreover, to attract customers, many of these carriers advertise receipt of various safety certifications (e.g., the FAA's Diamond Award of Excellence, Argus rated, AACA Medallion) as part of their marketing strategy. Permitting passengers to smoke onboard would be at odds with the standards of the certifying organizations. Finally, and perhaps most importantly, it is more costly to operate aircraft where smoking is permitted. Smoking increases hardware costs since cabin air filters have to be changed more frequently and avionics need to be cleaned more often. The higher expense associated with maintenance of aircraft in which smoking is allowed deters carriers from allowing the activity, unless of course, the increase in expense is justified by a net increase in demand from smokers (and thus revenues) to cover these costs.23 It is unclear whether these incentives apply to e-cigarettes.

An internet search yields a few anecdotes suggesting some smokers have been frustrated by the lack of options for those who wish to smoke during flight, which is a further indication that the industry norm has tended toward smoking prohibition, at least for traditional cigarettes. There have been some limited attempts to market flights for smokers or create a “smokers airline” which would allow or even encourage passengers to smoke during flight. However, none of these efforts have been successful to date.24 This probably reflects that a consumer's decision regarding which flight to purchase is complicated, involving price, availability, safety record or perceptions, and multiple other attributes. The ability to smoke on a flight would only be one aspect, and probably a very small one, in the overall decision. In addition, one would expect that at least some customers would purposely avoid flights that allowed smoking. Due to relative importance of other attributes (i.e. price), there are limits to how successful carriers who focus exclusively on attracting smokers can be.

In sum, at least 99 percent of passenger enplanements occur on flights that prohibit smoking of any type, including both traditional cigarettes and e-cigarettes. The remaining one percent of enplanements appears to be on charter flights that largely prohibit smoking of traditional cigarettes. Some of the charter companies also extend the prohibition to e-cigarettes, but the extent of that practice is unknown.

The involuntary exposure to second-hand smoke or e-cigarette aerosol in an airplane cabin represents one classic example of a market failure, an externality; the smoker (of either traditional or electronic cigarettes) does not bear the full cost of the activity. Part of the cost of smoking in an airplane cabin is borne by nearby passengers or flight crew who are unable to regulate their exposure. The costs of involuntary exposure to smoke or aerosol are in the form of actual adverse health consequences, perception and fear of adverse health consequences and annoyance or irritation regarding undesirable odors. Even if a carrier were to disclose that it allowed smoking (of either traditional cigarettes or e-cigarettes), patrons may not receive this information prior to departure or in the case of some smaller markets, they may not have a convenient option to avoid exposure by choosing an airline that disallowed use (which could represent another type of market failure, but not one that is the primary concern of this regulatory action).

Regarding e-cigarettes specifically, they typically do not involve combustion. However, they require an inhalation and exhalation action similar to smoking traditional cigarettes and they produce a cloud of aerosol which can be mistaken for smoke. E-cigarettes are generally designed to look like and be used in the same manner as conventional cigarettes. Passengers who do not engage in or understand the process of e-cigarette use can easily mistake the act for traditional smoking. Thus, even if second-hand exposure to e-cigarette aerosol were ever determined to not lead to the same type of health consequences as exposure to tobacco smoke, nearby passengers may still experience discomfort, stress or some in cases display aggression or fear because they believe their health is threatened. Currently, the state of knowledge regarding the effects of secondhand exposure to e-cigarette aerosol does not rule out the possibility of actual adverse health effects to nearby individuals who do not directly choose to engage in this activity. In fact, some research supports the case that bystanders incur actual adverse health effects when exposed to secondhand e-cigarette aerosol.

In the absence of a rule, carriers are free to make their own determinations regarding the use of e-cigarettes. Charter operations have historically had additional flexibility regarding smoking in general, as long as they accommodate nonsmoking patrons in accordance with the law (e.g., no-smoking sections). Scheduled service providers have chosen to prohibit e-cigarette use and charters typically do not allow smoking of traditional cigarettes (some charters also prohibit e-cigarettes but the degree to which this is standard practice is unknown). Without this rule, it is possible that some airlines could relax their current policies, which would increase passenger and flight crew secondhand exposure to aerosols and quite possibly, traditional tobacco smoke in the case of some charters.

In general, the impacts of the rule will be very modest, and generate little in terms of measurable benefits and costs. There will probably be no change to the current baseline for scheduled passenger operations. The existing regulation prohibits smoking on such flights and as described above, airlines that provide scheduled passenger service treat the smoking ban as covering e-cigarettes. Scheduled operations represent roughly 99 percent of passenger enplanements and thus, the rule can do little to impact current industry practice overall.

For charter (nonscheduled) flight operations, the impacts should also be small. Based upon review of carrier Web sites and their advertisements, charter companies appear to prohibit smoking of traditional cigarettes. Operating a nonsmoking airline is less costly, makes accommodating non-smoking patrons in accordance with the law easier, and assists in the receipt of certain safety certifications and perhaps the award of government contracts that may serve as useful marketing tools. While it is not known with any certainty whether the prohibitions apply to e-cigarette use, the widespread and seamless adoption of e-cigarette bans in the scheduled service component of the industry suggests that extending the prohibitions to e-cigarettes can be accomplished without too much difficulty or cost.

As noted above, the inclusion of e-cigarettes in the general smoking ban will not affect, but will simply reinforce, current industry practice in the scheduled service segment of the airline industry. Consequently, the final rule probably will produce close to zero benefits and zero costs over the current baseline when considering impacts solely to and resulting from scheduled service providers. The inclusion of e-cigarettes may potentially have greater impact on nonscheduled or charter service and these potential impacts, as well as benefits and costs, are discussed below.

Conversely, if DOT were to determine that e-cigarettes were not covered under the ban, the current industry environment could be affected, more so than would be expected under this final rule. First, some carriers could incur new costs relative to the baseline due to the need to more actively enforce their prohibitions. This could occur if some consumers mistakenly interpret DOT's failure to enact a federal prohibition as ensuring their right to engage in e-cigarette use in an airplane cabin. Alternatively, some carriers might lift their prohibitions, which could reduce the burden on the minority of the population that uses e-cigarettes and whose activities are now restricted. However, removing e-cigarette restrictions would reduce benefits relative to the current baseline by exposing other passengers and flight crew to secondhand aerosols. Additionally, airlines would probably need to offer additional training to crew members and the pre-flight briefing would have to be longer, to educate and explain what, when and where particular smoking products may and may not be used.

The nonscheduled segment of the industry could potentially experience greater impact than the scheduled service segment, because while some charter airlines explicitly prohibit e-cigarette use, the extent to which this practice is standard or typical is unknown. However, the widespread adoption of an e-cigarette ban on the part of scheduled service airlines suggests that implementing an e-cigarette prohibition is not particularly costly, at least when a general smoking ban is already in place. To the extent that e-cigarette use is allowed on charter flights, a ban will add a burden to smoking patrons who will no longer be able to engage in the activity while in flight. The burden to smoking patrons will probably constitute the primary burden of the rule with respect to e-cigarettes. However, benefits will accrue to nearby passengers and crew who no longer are exposed to secondhand aerosol.

The rule amends 14 CFR part 252 to implement section 401 of the FAA Modernization and Reform Act and extends the general smoking ban to nonscheduled interstate, intrastate, and foreign passenger air transportation when a flight attendant is required. To the extent that charter airlines allow smoking, the final rule will produce benefits in terms of reduced secondhand exposure to tobacco smoke, and the resulting positive health effects to nonsmoking passengers and flight crew. Again based upon a review of charter airline Web sites, most already prohibit smoking on their flights so the benefits of this nature are expected to be small.

There is no cost to operators for hardware related to smoking bans. In fact, smoking bans reduce hardware costs as cabin air filters do not have to be changed as frequently and avionics do not have to be cleaned as often, which is one reason that charter flights have opted to prohibit smoking, even when allowed by law. The American Aviation Institute, in its comments on the NPRM, raised the issue of additional costs due to new placards and notification lights, and re-printing of airline manuals.25 These should not be significant costs associated with this final rule since all aircraft are already required to be equipped with no-smoking signs and lights. Some operators may feel the need to update documents used to communicate to passengers and employees the activities prohibited by law. However, such document update is not a direct requirement of the final rule and would be voluntary on the part of affected airlines. The costs of updating such materials should be small since most charter flights already do not allow smoking and probably have developed documents in support of their policies. In addition, such documents are routinely updated since laws regarding prohibited behaviors and security concerns are constantly evolving. An operator could reduce the costs of updating documents to reflect changes as they pertain to smoking by waiting until there is a more general need for updating.

To the extent that the rule, in effect, expands the existing ban on smoking (for traditional tobacco products and its extension to electronic cigarettes), there could be a cost to operators in the form of lost revenue or profits due to a reduction in demand for flights from customers who would wish to smoke on those flights. Such costs are largely speculative since they would apply to operators who allow smoking and consumers who chose their particular flights based primarily on the ability to smoke; DOT was unable to identify any businesses, successful or otherwise, operating under this model. Given that smokers will not have a smoking flight alternative (except perhaps chartering their own private flight where a flight attendant is not required), they will need to choose another transportation mode such as driving to their destination or if an alternative mode is not feasible, they would need to choose to not travel at all, if the ability to smoke was the primary consideration in their decision-making process. Or they might choose alternate nicotine delivery systems, such as patches and gum. The lack of flight alternatives coupled with the presence of alternative nicotine delivery systems will likely limit the reduction in demand that the small number of operators who would allow smoking could experience. In addition, any reduction in demand from smokers may, to some extent, be offset by increased demand from non-smokers.

Due to the inability to identify any specific carrier that would need to change its current practices significantly, DOT was unable to quantify the costs and the benefits of the rule, but believes both are probably very small. The overwhelming majority of passengers travel on scheduled service where smoking, including the use of e-cigarettes, is already prohibited. If smoking were to be allowed on nonscheduled flights, benefits of a ban would include reductions in potential exposure to secondhand smoke for passengers and crewmembers. Expanding the ban on smoking to cover e-cigarettes could reduce health hazards related to secondhand exposure to exhaled aerosols. The costs to operators should be minimal, but some passengers could experience some costs due to a reduced opportunity to smoke.

The risks and resulting adverse health consequences associated with secondhand exposure to tobacco smoke are well-documented.26 Existing evidence indicates that e-cigarettes may also have adverse health impacts, not just for users, but for those nearby. Those seated next to users may not want to expose themselves (or their babies or older children) to the risks of these adverse health impacts and at least some crewmembers may prefer to work in an environment free of these risks since they fly far more frequently than most passengers. Due to the involuntary nature of the risk of secondhand exposure, the Department believes that it is prudent to give greater weight to the potential benefits of the rule than to the inconvenience costs incurred by smoking passengers or any small incremental costs incurred by airline operators.

DOT has identified only one viable regulatory alternative: A final rule that is limited in scope to solely to implementing Section 401 of the FAA Modernization and Reform Act. Such a rule would not alter the definition of smoking to cover e-cigarettes. DOT has determined that the alternative of “no regulatory action” (i.e. the status quo) is not viable since the Department is required to implement Section 401 of the FAA Modernization and Reform Act, at a minimum.

Restricting the rule to Section 401 implementation would represent the minimum regulatory action that the Department could undertake. To the extent that smoking of traditional cigarettes is occurring on nonscheduled interstate, intrastate, and foreign passenger air transportation when a flight attendant is a required crew member, there would still be some benefits related to reduced secondhand smoke exposure from traditional cigarettes.

This alternative would continue to allow airlines to develop their own policies regarding use of e-cigarettes, allowing them to change their current policies if they desire. If a carrier chose to change its policy, this would expose passengers and crewmembers to potentially harmful health risks. Also, any change in policy to allow for the use of e-cigarettes would require flight attendants to distinguish among various cigarettes and devices to determine which are acceptable. For example, the Air Line Pilots Association (ALPA) noted in their comments the possibility of passenger and crewmember confusion in differentiating e-cigarettes from tobacco cigarettes, as the two products can be difficult to distinguish from each other. In addition, carriers that do not change their policies could incur new costs due to the need to more actively enforce their prohibitions. This could occur if some consumers mistakenly interpret the lack of a federal prohibition as ensuring their right to engage in e-cigarette use in an airplane cabin. For these reasons, DOT rejected this alternative.

DOT has examined the economic implications of this final rule for small entities as required by the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Unless an agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities, the Regulatory Flexibility Act requires the agency to analyze regulatory options that would lessen the economic effect of the rule on small entities. As discussed below, DOT finds that this final rule will not have a significant economic impact on a substantial number of small entities.

For purposes of rules promulgated by the Office of the Secretary of Transportation regarding aviation economic and consumer matters, an airline is a small entity for purposes of the Regulatory Flexibility Act if it provides air transportation only with aircraft having 60 or fewer seats and no more than 18,000 pounds payload capacity. Referring to Table A.1, this final rule applies to 63 (15 + 48) small U.S. carriers.27 Of these small carriers, 50 (13 + 37), or about 79 percent, provide scheduled service and are subject to the general smoking ban. As noted above, scheduled service providers have overwhelmingly adopted prohibitions on e-cigarette use. DOT is unaware of any small scheduled service carrier that would need to change its e-cigarette policy in response to this final rule. In addition, the widespread industry ban on e-cigarettes suggests that it is quite easy to cover e-cigarettes once a smoking ban is in place. Thus, it is expected that the typical small scheduled service airline will experience no impacts due to this rule.

The remaining 13 (2 + 11) small airlines, or roughly 21 percent, provide nonscheduled or charter services. Based upon a review of their individual Web sites, none of these carriers cater their businesses to smoking patrons (smokers of either traditional or e-cigarettes). As noted above, providers of charter airplane service have several incentives to prohibit smoking of traditional cigarettes, including lower operating costs, ease of accommodating nonsmoking patrons, and meeting the standards necessary for receipt of safety certifications and government contracts. In addition, several of the small charter airlines have fleets that consist of extremely small aircraft (i.e. Cessnas or other planes that seat fewer than 10 passengers), and smoking is already banned on these aircraft (see existing section 252.13). Moreover, some of these companies provide medical transportation services, which is likely at odds with a permissive smoking policy. While it is not known with any certainty whether these factors also represent incentives to restrict e-cigarette use, the swift adoption of e-cigarette bans in the scheduled service component of the industry suggests that extending the prohibitions to e-cigarettes can be accomplished without too much difficulty or cost once a ban on smoking is already in place.

For the reasons described about, the final rule is unlikely to produce a significant financial impact on any small carrier, and probably will not affect their operations in any meaningful way. Therefore, the Secretary of Transportation certifies that the final rule will not have a significant economic impact on a substantial number of small entities.

This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”). This regulation has no substantial direct effects on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. It does not contain any provision that imposes substantial direct compliance costs on State and local governments. It does not contain any provision that preempts state law, because states are already preempted from regulating in this area under the Airline Deregulation Act, 49 U.S.C. 41713. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.

This rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13084 (“Consultation and Coordination with Indian Tribal Governments”). Because none of the measures in the rule will significantly or uniquely affect the communities of the Indian tribal governments or impose substantial direct compliance costs on them, the funding and consultation requirements of Executive Order 13084 do not apply.

Under the Paperwork Reduction Act, before an agency submits a proposed collection of information to OMB for approval, it must publish a document in the Federal Register providing notice of and a 60-day comment period on, and otherwise consult with members of the public and affected agencies concerning, each proposed collection of information. This rule imposes no new information reporting or record keeping necessitating clearance by the Office of Management and Budget.

The Department has analyzed the environmental impacts of this final rule pursuant to the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.) and has determined that it is categorically excluded pursuant to DOT Order 5610.1C, Procedures for Considering Environmental Impacts (44 FR 56420, Oct. 1, 1979). Categorical exclusions are actions identified in an agency's NEPA implementing procedures that do not normally have a significant impact on the environment and therefore do not require either an environmental assessment (EA) or environmental impact statement (EIS). See 40 CFR 1508.4. In analyzing the applicability of a categorical exclusion, the agency must also consider whether extraordinary circumstances are present that would warrant the preparation of an EA or EIS. Id. Paragraph 3.c.6.i of DOT Order 5610.1C categorically excludes “[a]ctions relating to consumer protection, including regulations.” The purpose of this rulemaking is to extend the smoking ban in 14 CFR part 252 to include all charter flights where a flight attendant is a required crewmember and to ban the use of e-cigarettes. The Department does not anticipate any environmental impacts, and there are no extraordinary circumstances present in connection with this rulemaking.

The Department analyzed the final rule under the factors in the Unfunded Mandates Reform Act of 1995. The Department considered whether the rule includes a federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year. The Department has determined that this final rule will not result in such expenditures. Accordingly, this final rule is not subject to the Unfunded Mandates Reform Act.

For the reasons stated in the preamble, the Office of the Secretary of Transportation amends 14 CFR part 252 as set forth below:

FDA is updating the UDI email address in the following regulations that set forth the procedures for notifying the Agency when: (1) Requesting an exception from or alternative to a unique device identifier requirement (§ 801.55 (21 CFR 801.55)); (2) requesting continued use of legacy FDA identification numbers assigned to devices (§ 801.57 (21 CFR 801.57)); and (3) applying for accreditation as an issuing Agency (§ 830.110 (21 CFR 830.110)).

Specifically, the Agency is removing an old email address and replacing it with a new one, thereby maintaining consistency with the requirements of the FD&C Act (21 U.S.C. 321 et seq.).

In the Federal Register of September 24, 2013 (78 FR 58786), FDA issued a final rule to establish a system to adequately identify devices through distribution and use. The rule required the label of medical devices to include a UDI, except where an exception or alternative applies. The labeler must submit product information concerning devices to FDA's Global Unique Device Identification Database (GUDID). The final rule incorporated a direct avenue for the labeler to communicate with FDA's GUDID via a UDI email address. This rule updates §§ 801.55(b)(2), 801.57(c)(2), and 830.110(a) by replacing the old email address with a new one.

Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR parts 801and 830 are amended as follows:

The Drug Enforcement Administration (DEA) implements and enforces titles II and III of the Comprehensive Drug Abuse Prevention and Control Act of 1970, as amended. Titles II and III are referred to as the “Controlled Substances Act” and the “Controlled Substances Import and Export Act,” respectively, and are collectively referred to as the “Controlled Substances Act” or the “CSA” for purpose of this action. 21 U.S.C. 801-971. The DEA published the implementing regulations for these statutes in title 21 of the Code of Federal Regulations (CFR), chapter II.

The CSA and its implementing regulations are designed to prevent, detect, and eliminate the diversion of controlled substances and listed chemicals into the illicit market while ensuring an adequate supply is available for the legitimate medical, scientific, research, and industrial needs of the United States. Controlled substances have the potential for abuse and dependence and are controlled to protect the public health and safety.

Under the CSA, every controlled substance is classified into one of five schedules based upon its potential for abuse, its currently accepted medical use in treatment in the United States, and the degree of dependence the drug or other substance may cause. 21 U.S.C. 812. The initial schedules of controlled substances established by Congress are found at 21 U.S.C. 812(c), and the current list of all scheduled substances is published at 21 CFR part 1308.

Section 201 of the CSA (21 U.S.C. 811) provides the Attorney General with the authority to temporarily place a substance into schedule I of the CSA for two years without regard to the requirements of 21 U.S.C. 811(b) if she finds that such action is necessary to avoid an imminent hazard to the public safety. 21 U.S.C. 811(h)(1). In addition, if proceedings to control a substance are initiated under 21 U.S.C. 811(a)(1), the Attorney General may extend the temporary scheduling for up to one year. 21 U.S.C. 811(h)(2).

Where the necessary findings are made, a substance may be temporarily scheduled if it is not listed in any other schedule under section 202 of the CSA (21 U.S.C. 812) or if there is no exemption or approval in effect for the substance under section 505 of the Federal Food, Drug, and Cosmetic Act (FDCA), 21 U.S.C. 355. 21 U.S.C. 811(h)(1). The Attorney General has delegated her scheduling authority under 21 U.S.C. 811 to the Administrator of the DEA. 28 CFR 0.100.

On March 7, 2014, the DEA published a final order in the Federal Register amending 21 CFR 1308.11(h) to temporarily place the 10 synthetic cathinones 4-methyl-N-ethylcathinone (4-MEC); 4-methyl-alpha-pyrrolidinopropiophenone (4-MePPP); alpha-pyrrolidinopentiophenone (α-PVP); 1-(1,3-benzodioxol-5-yl)-2-(methylamino)butan-1-one (butylone); 2-(methylamino)-1-phenylpentan-1-one (pentedrone); 1-(1,3-benzodioxol-5-yl)-2-(methylamino)pentan-1-one (pentylone); 4-fluoro-N-methylcathinone (4-FMC); 3-fluoro-N-methylcathinone (3-FMC); 1-(naphthalen-2-yl)-2-(pyrrolidin-1-yl)pentan-1-one (naphyrone); and alpha-pyrrolidinobutiophenone (α-PBP) into schedule I of the CSA pursuant to the temporary scheduling provisions of 21 U.S.C. 811(h). 79 FR 12938. That final order was effective on the date of publication, and was based on findings by the Deputy Administrator of the DEA that the temporary scheduling of these ten synthetic cathinones was necessary to avoid an imminent hazard to the public safety pursuant to 21 U.S.C. 811(h)(1). Section 201(h)(2) of the CSA (21 U.S.C. 811(h)(2)) requires that the temporary control of these substances expires two years from the effective date of the scheduling order, or on March 6, 2016. However, the CSA also provides that during the pendency of proceedings under 21 U.S.C. 811(a)(1) with respect to the substance, the temporary scheduling of that substance could be extended for up to one year. Proceedings for the permanent scheduling of a substance under 21 U.S.C. 811(a) may be initiated by the Attorney General (delegated to the Administrator of the DEA pursuant to 28 CFR 0.100) on his or her own motion, at the request of the Secretary of Health and Human Services,1 or on the petition of any interested party.

The Administrator of the DEA, on his own motion pursuant to 21 U.S.C. 811(a), has initiated proceedings under 21 U.S.C. 811(a)(1) to permanently schedule 4-MEC, 4-MePPP, α-PVP, butylone, pentedrone, pentylone, 4-FMC, 3-FMC, naphyrone, and α-PBP. The DEA has gathered and reviewed the available information regarding the pharmacology, chemistry, trafficking, actual abuse, pattern of abuse, and the relative potential for abuse for these 10 synthetic cathinones. On December 30, 2014, the DEA submitted a request to the HHS to provide the DEA with a scientific and medical evaluation of available information and a scheduling recommendation for 4-MEC, 4-MePPP, α-PVP, butylone, pentedrone, pentylone, 4-FMC, 3-FMC, naphyrone, and α-PBP, in accordance with 21 U.S.C. 811 (b) and (c). Upon evaluating the scientific and medical evidence, on March 2, 2016, the HHS submitted to the Administrator of the DEA its 10 scientific and medical evaluations for these substances. Upon receipt of the scientific and medical evaluation and scheduling recommendations from the HHS, the DEA reviewed the documents and all other relevant data, and conducted its own eight-factor analysis of the abuse potential of 4-MEC, 4-MePPP, α-PVP, butylone, pentedrone, pentylone, 4-FMC, 3-FMC, naphyrone, and α-PBP in accordance with 21 U.S.C. 811(c). The DEA has published a notice of proposed rulemaking for the placement of 4-MEC, 4-MePPP, α-PVP, butylone, pentedrone, pentylone, 4-FMC, 3-FMC, naphyrone, and α-PBP into schedule I elsewhere in this issue of the Federal Register.

Pursuant to 21 U.S.C. 811(h)(2), the Administrator of the DEA orders that the temporary scheduling of 4-MEC, 4-MePPP, α-PVP, butylone, pentedrone, pentylone, 4-FMC, 3-FMC, naphyrone, and α-PBP, including their optical, positional, and geometric isomers, salts, and salts of isomers be extended for one year, or until the permanent scheduling proceeding is completed, whichever occurs first.

In accordance with this final order, the schedule I requirements for handling 4-MEC, 4-MePPP, α-PVP, butylone, pentedrone, pentylone, 4-FMC, 3-FMC, naphyrone, or α-PBP, including their optical, positional, and geometric isomers, salts, and salts of isomers, will remain in effect for one year, or until the permanent scheduling proceeding is completed, whichever occurs first.

The CSA provides for an expedited temporary scheduling action where such action is necessary to avoid an imminent hazard to the public safety. 21 U.S.C. 811(h). The Attorney General may, by order, schedule a substance in schedule I on a temporary basis. Id. 21 U.S.C. 811(h) also provides that the temporary scheduling of a substance shall expire at the end of two years from the date of the issuance of the order scheduling such substance, except that the Attorney General may, during the pendency of proceedings to permanently schedule the substance, extend the temporary scheduling for up to one year.

To the extent that 21 U.S.C. 811(h) directs that temporary scheduling actions be issued by order and sets forth the procedures by which such orders are to be issued and extended, the DEA believes that the notice and comment requirements of section 553 of the Administrative Procedure Act (APA) (5 U.S.C. 553) do not apply to this extension of the temporary scheduling action. In the alternative, even assuming that this action might be subject to section 553 of the APA, the Administrator finds that there is good cause to forgo the notice and comment requirements of section 553, as any further delays in the process for extending the temporary scheduling order would be impracticable and contrary to the public interest in view of the manifest urgency to avoid an imminent hazard to the public safety. Further, the DEA believes that this final order extending the temporary scheduling action is not a “rule” as defined by 5 U.S.C. 601(2), and, accordingly, is not subject to the requirements of the Regulatory Flexibility Act (RFA). The requirements for the preparation of an initial regulatory flexibility analysis in 5 U.S.C. 603(a) are not applicable where, as here, the DEA is not required by section 553 of the APA or any other law to publish a general notice of proposed rulemaking.

Additionally, this action is not a significant regulatory action as defined by Executive Order 12866 (Regulatory Planning and Review), section 3(f), and, accordingly, this action has not been reviewed by the Office of Management and Budget (OMB).

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. Therefore, in accordance with Executive Order 13132 (Federalism), it is determined that this action does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

As noted above, this action is an order, not a rule. Accordingly, the Congressional Review Act (CRA) is inapplicable, as it applies only to rules. It is in the public interest to maintain the temporary placement of 4-MEC, 4-MePPP, α-PVP, butylone, pentedrone, pentylone, 4-FMC, 3-FMC, naphyrone, and α-PBP in schedule I because they pose a public health risk. The temporary scheduling action was taken pursuant to 21 U.S.C. 811(h), which is specifically designed to enable the DEA to act in an expeditious manner to avoid an imminent hazard to the public safety. Under 21 U.S.C. 811(h), temporary scheduling orders are not subject to notice and comment rulemaking procedures. The DEA understands that the CSA frames temporary scheduling actions as orders rather than rules to ensure that the process moves swiftly, and this extension of the temporary scheduling order continues to serve that purpose. For the same reasons that underlie 21 U.S.C. 811(h), that is, the need to place these substances in schedule I because they pose an imminent hazard to public safety, it would be contrary to the public interest to delay implementation of this extension of the temporary scheduling order. Therefore, in accordance with section 808(2) of the CRA, this final order extending the temporary scheduling order shall take effect immediately upon its publication. The DEA has submitted a copy of this final order to both Houses of Congress and to the Comptroller General, although such filing is not required under the Small Business Regulatory Enforcement Fairness Act of 1996 (Congressional Review Act), 5 U.S.C. 801-808 because, as noted above, this action is an order, not a rule.

I. Background

The mission of the Bureau of Engraving and Printing is to develop and produce United States currency notes, trusted worldwide. BEP prints billions of dollars in currency—referred to as Federal Reserve notes—each year for delivery to the Federal Reserve System. Due to the sensitive nature of currency production operations, the Bureau is generally closed to the public. Limited areas of the Bureau, however, are accessible for public tours during certain authorized dates and times. Any individual entering, exiting, or on the Bureau's property is subject to the rules of conduct as prescribed within the regulations, and violations may result in criminal prosecution. The BEP has a high degree of security due to producing United States currency notes, and individuals entering, exiting, and on the property are placed on notice that they are subject to search and inspection of their person, personal items and property while entering, exiting, and on the property.

This final rule updates the Bureau's 1994 (59 FR 41978) regulations that concern conduct on BEP property. The final rule removes certain obsolete language, clarifies the rules of conduct on the property, and increases the maximum penalty amount permitted for violations to $5,000 in accordance with 18 U.S.C. 3571. The final rule also omits the term Special as used in the previous regulations when referring to the BEP Police. The term Special was unnecessary and could lead to potential confusion. This change has no effect on the legal authority and jurisdiction of the BEP Police. The rights and responsibilities of the BEP Police remain unchanged.

The notice of proposed rulemaking was published on December 10, 2015, and provided a 60-day comment period, which ended on February 8, 2016. No comments were received. Based on the rationale set forth in the Supplementary Information to the notice of proposed rulemaking and in this final rule, the BEP is adopting the proposed rule as a final rule with the slight modifications of adding the words “search or” before the word “inspection” in paragraphs (b)(6), (b)(7), and (b)(8) to ensure clarity and consistency between related provisions.

In accordance with the Regulatory Flexibility Act (5 U.S.C 601 et seq.), the Bureau certifies that this final rule will not have a significant economic impact on a substantial number of small entities because this final rule primarily affects individuals accessing BEP property and is not likely to affect any small businesses.

The Bureau certifies that no actions were deemed necessary under the Unfunded Mandates Reform Act of 1995. Furthermore, this final rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and will not significantly or uniquely affect small governments.

This final rule is not a significant regulatory action as defined in Executive Order 12866. Executive Order 13563 calls for public participation and an open exchange of ideas in the regulatory process and seeks regulations that are accessible, consistent, written in plain language, and easy to understand. The Bureau has developed this final rule in a manner consistent with these principles.

For the reasons stated in the preamble, the Bureau of Engraving and Printing amends 31 CFR part 605 to read as follows:

On December 30, 2014, we published a temporary deviation from regulations; request for comments (TD) entitled “Drawbridge Operation Regulation; Victoria Barge Canal, Bloomington, Texas” in the Federal Register (79 FR 78304). We received no comments on this temporary deviation. No public meeting was requested, and none was held. However, a contractor raised an issue regarding the requirements of dispatchers to contact the vessels when a vessel entered the two-mile bridge zone. In response to this concern, the Coast Guard decided that prior to issuance of a final rule, further comments would be accepted under an interim rule.

On July 10, 2015, the Coast Guard published an interim rule with request for comments entitled “Drawbridge Operation Regulation; Victoria Barge Canal, Bloomington, Texas” in the Federal Register (80 FR 39683). The interim rule allowed mariners to continue transit while the bridge was being remotely operated and comment as to whether the proposed method of operation was sufficient to ensure the safety of vessels transiting the area. We did not receive any comments on the interim rule. No public meeting was requested, and none was held.

The Coast Guard is issuing this rule under authority 33 U.S.C. 499. The bridge owner, the Victoria County Navigation District, in conjunction with the Union Pacific Railroad (UPRR) requested permission to remotely operate the Victoria Barge Canal Railroad Bridge across the Victoria Barge Canal, mile 29.4 at Bloomington, Victoria County, Texas. Traffic on the waterway consists of commercial traffic—primarily vessels and tows providing services to the Port of Victoria, and no reported recreational traffic transits the waterway. The vertical lift bridge has a vertical clearance of 22 feet above high water in the closed-to-navigation position and 50 feet above high water in the open-to-navigation position.

Presently, the bridge opens on signal for the passage of vessels in accordance with 33 CFR 117.991. Under the Temporary Deviation published on December 30, 2014, and the interim rule published on July 10, 2015, this bridge has been remotely operated for the past year and mariners will not notice any changes to the ongoing method of operation of the bridge.

This final rule allows all vessels utilizing this stretch of the waterway to continue to transit the waterway unencumbered while providing for the bridge owner to operate the bridge from a remote location. Vessel operators should not see any changes in the efficiency of vessel movements as the bridge will still be required to open on signal for the passage of vessels.

As discussed above, a temporary deviation was published on December 30, 2014, and an interim rule was published on July 10, 2015. The Coast Guard provided separate 60-day comment periods for the temporary deviation and the interim rule. No comments were received and no changes to the final rule have been made.

We developed this rule after considering numerous statutes and executive orders (E.O.s) related to rulemaking. Below we summarize our analyses based on a number of these statutes and E.O.s, and we discuss First Amendment rights of protesters.

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

This regulatory action determination is based on the ability that vessels can still transit the bridge. This final rule allows all vessels utilizing this stretch of the waterway to continue to transit the waterway unencumbered while providing for the bridge owner to operate the bridge from a remote location. Vessel operators should not see any changes in the efficiency of vessel movements as the bridge will still be required to open on signal for the passage of vessels.

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received no comments from the Small Business Administration on this rule. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

This rule will affect the following entities, some of which may be small entities: The property owners, vessel operators and waterway users who wish to transit on Victoria Barge Canal daily. However, this rule will not have a significant impact on a substantial number of small entities for the following reasons: A test deviation was conducted and an interim rule was published and no opposition in response to the test or interim rule was received by the Coast Guard Office of Bridge Administration. Further, through pre-coordination and consultation with property owners, vessel operators and waterway users, this operating schedule accommodates all waterway users with minimal impact.

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

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

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

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

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

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a determination that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule simply promulgates the operating regulations or procedures for drawbridges. This action is categorically excluded from further review, under figure 2-1, paragraph (32)(e), of the Instruction.

Under figure 2-1, paragraph (32)(e), of the Instruction, an environmental analysis checklist and a categorical exclusion determination are not required for this rule.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the For Further Information Contact section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would be impracticable. The final details for this event were not known to the Coast Guard until there was insufficient time remaining before the event to publish a NPRM. Thus, delaying the effective date of this rule to wait for a comment period to run would be impracticable because it would inhibit the Coast Guard's ability to protect the public and vessels from the hazards associated with a bridge demolition being conducted on February 29, 2016 or an alternate date from March 1, 2016 to March 10, 2016.

We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this temporary rule effective less than 30 days after publication in the Federal Register. For the same reasons discussed in the preceding paragraph, waiting for a 30 day notice period to run would be impracticable.

The legal basis for the rule is the Coast Guard's authority to establish safety zones: 33 U.S.C. 1231; 33 CFR 1.05-1, 160.5; Department of Homeland Security Delegation No. 0170.1.

On February 29, 2016 or an alternate date from March 1, 2016 to March 10, 2016 a bridge demolition will take place on the Grand Calumet River at the junction with the Little Calumet River in Chicago, IL. The Captain of the Port Lake Michigan has determined that the bridge demolition will pose a significant risk to public safety and property. Such hazards include launched and falling debris.

With the aforementioned hazards in mind, the Captain of the Port Lake Michigan has determined that this temporary safety zone is necessary to ensure the safety of the public during a bridge demolition on the Grand Calumet River at the junction with the Little Calumet River. This safety zone will be enforced from 8 a.m. to 1 p.m. on February 29, 2016 or an alternate date from March 1, 2016 to March 10, 2016. This zone will encompass all waters 1,500 feet in both directions on the Little Calumet River from the junction of the Little Calumet River and the Grand Calumet River.

Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Lake Michigan, or a designated on-scene representative. The Captain of the Port or a designated on-scene representative may be contacted via VHF Channel 16.

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

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

We conclude that this rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The safety zone created by this rule will be relatively small and enforced on February 29, 2016 or an alternate date from March 1, 2016 to March 10, 2016 from 8 a.m. to 1 p.m. Under certain conditions, moreover, vessels may still transit through the safety zone when permitted by the Captain of the Port.

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

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered the impact of this temporary rule on small entities. This rule will affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit on a portion of the Little Calumet River on February 29, 2016 or an alternate date from March 1, 2016 to March 10, 2016 from 8 a.m. to 1 p.m.

This safety zone will not have a significant economic impact on a substantial number of small entities for the reasons cited in the Regulatory Planning and Review section. Additionally, before the enforcement of the zone, we will issue local Broadcast Notice to Mariners and Public Notice of Safety Zone so vessel owners and operators can plan accordingly.

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves the establishment of a safety zone for a bridge demolition on the Grand Calumet River at the junction with the Little Calumet River, Chicago, IL. It is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

The Coast Guard will enforce a segment of the Safety Zone; Brandon Road Lock and Dam to Lake Michigan including Des Plaines River, Chicago Sanitary and Ship Canal, Chicago River, Calumet-Saganashkee Channel, Chicago, IL, listed in 33 CFR 165.930. Specifically, the Coast Guard will enforce this safety zone on all waters of the Chicago Sanitary and Ship Canal between Mile Marker 296.1 to Mile Marker 296.7. Enforcement will occur on March 3, 2016 from 7 a.m. until 11 a.m. and from 1 p.m. until 5 p.m. In the event the work cannot be completed on March 3, 2016 due to inclement weather or unforeseen circumstances this safety zone will be enforced on March 4, 2016 through March 11, 2016 from 7 a.m. until 11 a.m. and from 1 p.m. until 5 p.m. During the enforcement period, no vessel may transit this regulated area without approval from the Captain of the Port Sector Lake Michigan (COTP) or a COTP designated representative.

This notice of enforcement is issued under the authority of 33 CFR 165.930 and 5 U.S.C. 552(a). In addition to this publication in the Federal Register, the Captain of the Port Lake Michigan will also provide notice through other means, which may include

Broadcast Notice to Mariners, Local Notice to Mariners, local news media, distribution in leaflet form, and on-scene oral notice. Additionally, the Captain of the Port Lake Michigan may notify representatives from the maritime industry through telephonic and email notifications.

I. Background

On September 8, 2011, EPA took final action to approve portions of a requested revision to the Georgia SIP, submitted by Georgia EPD on January 13, 2011. See 76 FR 55572. Specifically, the portions of Georgia's January 13, 2011, SIP submittal that EPA approved incorporated two updates to the State's air quality regulations under Georgia's New Source Review (NSR) Prevention of Significant Deterioration (PSD) program. First, the SIP revision established emission thresholds for determining which new stationary sources and modification projects become subject to Georgia's PSD permitting requirements for their greenhouse gas (GHG) emissions. Second, the SIP revision incorporated provisions for implementing the PSD program for the fine particulate matter (PM2.5) national ambient air quality standards (NAAQS). EPA noted in its September 8, 2011 final rule approving portions of Georgia's January 13, 2011, SIP submittal that the Agency was still evaluating the portion of the SIP submittal related to a provision (at 391-3-1-.02(7)(a)(2)(iv)) that would automatically rescind portions of Georgia's SIP in the wake of certain court decisions or other triggering events (the automatic rescission clause), and consequently was not taking action on that provision in that final action. See 76 FR at 55573.

Specifically, at 391-3-1-.02(7)(a)(2)(iv), Georgia's rules read as follows: “The definition and use of the term ‘subject to regulation’ in 40 CFR, part 52.21, as amended June 3, 2010, is hereby incorporated by reference; provided, however, that in the event all or any portion of 40 CFR 52.21 containing that term is: (i) Declared or adjudged to be invalid or unconstitutional or stayed by the United States Court of Appeals for the Eleventh Circuit or for the District of Columbia Circuit; or (ii) withdrawn, repealed, revoked or otherwise rendered of no force and effect by the United States Environmental Protection Agency, Congress, or Presidential Executive Order. [sic] Such action shall render the regulation as incorporated herein, or that portion thereof that may be affected by such action, as invalid, void, stayed, or otherwise without force and effect for purposes of this rule upon the date such action becomes final and effective; provided, further, that such declaration, adjudication, stay, or other action described herein shall not affect the remaining portions, if any, of the regulation as incorporated herein, which shall remain of full force and effect as if such portion so declared or adjudged invalid or unconstitutional or stayed or otherwise invalidated or effected were not originally a part of this rule. The Board declares that it would [not] have incorporated the remaining parts of the federal regulation if it had known that such portion thereof would be declared or adjudged invalid or unconstitutional or stayed or otherwise rendered of no force and effect.”

In a notice of proposed rulemaking (NPR) published on July 31, 2015, EPA proposed to disapprove the portion of Georgia's January 13, 2011, submittal that would add the automatic rescission clause at Georgia Rule 391-3-1-.02(7)(a)(2)(iv) to the SIP. See 80 FR 45635. EPA is now taking final action to disapprove this portion of Georgia's submittal.

In assessing the approvability of Georgia's proposed automatic rescission clause, EPA considered two key factors: (1) Whether the public will be given reasonable notice of any change to the SIP that occurs as a result of the automatic rescission clause; and (2) whether any future change to the SIP that occurs as a result of the automatic rescission clause would be consistent with EPA's interpretation of the effect of the triggering action (e.g., the extent of an administrative or judicial stay) on federal permitting requirements at 40 CFR 52.21. These criteria are derived from the SIP revision procedures set forth in the CAA and federal regulations.

Regarding public notice, CAA section 110(l) provides that any revision to a SIP submitted by a State to EPA for approval “shall be adopted by such State after reasonable notice and public hearing.” See 42 U.S.C. 7410(l). Under Georgia's automatic rescission clause, the SIP would automatically be revised as a result of a triggering action without public notice. To the extent that there is any ambiguity regarding how a court order or other triggering action impacts the federal permitting requirements at 40 CFR 52.21, that ambiguity will lead to ambiguity regarding the extent to which the triggering action results in a SIP revision (and indeed, whether a particular court ruling or other action in fact triggers an automatic SIP revision under Georgia's automatic rescission clause). EPA concludes that Georgia's automatic rescission clause would not provide reasonable public notice of a SIP revision as required by CAA 110(l), 42 U.S.C. 7410(l).

EPA's consideration of whether any SIP change resulting from the automatic rescission clause would be consistent with EPA's interpretation of the effect of the triggering action on federal permitting requirements at 40 CFR 52.21 is based on 40 CFR 51.105. Under 40 CFR 51.105, “[r]evisions of a plan, or any portion thereof, will not be considered part of an applicable plan until such revisions have been approved by the Administrator in accordance with this part.” However, the Georgia automatic rescission clause takes effect immediately upon certain triggering actions without any EPA intervention. The effect of this is that EPA is not given the opportunity to determine the effect and extent of the triggering court order or federal law change on the federal permitting requirements at 40 CFR 52.21; instead, the SIP is modified without EPA's approval.

Comments on the NPR were due on or before August 31, 2015. EPA received adverse comments on our proposed action, specifically on our proposed disapproval of the automatic rescission clause, from Georgia EPD. EPA also received comments from Georgia Industry Environmental Coalition, Inc. (GIEC). After considering the comments, EPA has decided to finalize our action as proposed. A summary of the comments and EPA's responses follow.

Comment 1: Georgia EPD contends that the public notice, the comment period, and the public hearing held for the rule change that adopted the automatic rescission clause at Georgia Rule 391-3-1-.02(7)(a)(2)(iv) satisfies CAA section 110(l) requirements. Specifically, Georgia EPD notes that it published public notices in several newspapers announcing an opportunity to comment on the proposed automatic rescission clause, held a public hearing, and addressed all comments received during the public comment period. According to Georgia EPD, Georgia's rescission clause already went through public notice and comment, and there is no reason to require another round of public notice and comment simply because the automatic rescission clause is triggered.

GIEC likewise argues that Georgia EPD followed notice-and-comment procedures prior to the adoption of the automatic rescission clause that satisfy the requirements of CAA section 110(l). GIEC adds that the notice-and-comment procedures the Georgia EPD performed are indistinguishable from notice-and-comment procedures taken by the Tennessee Department of Environment and Conservation (TDEC) and the Louisville Metro Air Pollution Control District (LMAPCD) prior to enacting EPA-approved “automatic rescission” SIP provisions. GIEC contends that in approving the TDEC and LMAPCD provisions, EPA concluded that these agencies' respective prior notice-and-comment procedures satisfied CAA section 110(l) because they placed the public on notice that the respective SIPs would update automatically to reflect rescission-triggering actions. According to GIEC, because EPA concluded that TDEC and LMAPCD notice-and-comment procedures occurring prior to promulgation of their respective automatic rescission provisions satisfied CAA section 110(l), EPA cannot now conclude that the Georgia provision would not provide reasonable public notice under CAA section 110(l) when Georgia followed indistinguishable notice-and-comment procedures prior to promulgating that provision. GIEC contends that if EPA were to finally conclude in this rulemaking that the provision does not satisfy CAA section 110(l), such a conclusion would be arbitrary, capricious, an abuse of discretion, beyond the Agency's statutory and Constitutional limits, and otherwise contrary to law in light of the Agency's final determinations concerning the TDEC and LMAPCD SIPs.

Response 1: EPA disagrees with the Commenters' contention that the public notice and comment procedures associated with Georgia's adoption of the automatic rescission clause are sufficient to fulfill notice-and-comment requirements with respect to any future SIP revision resulting from the rescission clause's operation. While EPA does not dispute that Georgia EPD provided for public comment and a hearing when promulgating the automatic rescission clause at Georgia Rule 391-3-1-.02(7)(a)(2)(iv), that public comment opportunity did not—and could not—satisfy CAA section 110(l)'s public-notice-and-comment requirement with respect to future SIP revisions that would occur in the wake of a triggering action if EPA were to approve the automatic rescission clause into Georgia's SIP.

Contrary to the GIEC's suggestion, EPA's approval of the automatic rescission clauses adopted by TDEC and LMAPCD does not render EPA's disapproval of Georgia's automatic rescission clause unlawful or arbitrary and capricious. This is because Georgia's automatic rescission clause differs substantially from the automatic rescission clauses adopted by TDEC and LMAPCD. First, under the automatic rescission clauses adopted by TDEC and LMAPCD, no change to the SIP will occur until EPA publishes a Federal Register notice announcing that a portion of 40 CFR 52.21 has been stayed, vacated, or withdrawn. See 77 FR 12484 (March 1, 2012); 77 FR 62150 (October 12, 2012). As EPA explained in the final actions approving these clauses, because no change to the SIP will occur until EPA has published a Federal Register notice announcing the change in federal regulations, “the timing and extent of any future SIP change resulting from the automatic rescission clause will be clear to both the regulated community and the general public.” Id. Second, unlike Georgia's proposed rescission clause, the automatic rescission clauses adopted by TDEC and LMAPCD make it clear to the public in advance that any SIP change resulting from operation of the automatic rescission clause will be consistent with EPA's interpretation of how the triggering action impacted federal regulations.

In sharp contrast, the SIP changes resulting from operation of Georgia's proposed automatic rescission clause would happen automatically upon a triggering event without any public notice or EPA involvement. To the extent that there is any ambiguity regarding how a court order or other triggering action impacts the federal permitting requirements at 40 CFR 52.21, that ambiguity would lead to ambiguity regarding the specific revision to Georgia's SIP resulting from the triggering action. Not only does the public have no assurance that changes resulting from operation of the rescission clause would be consistent with EPA's interpretation of the applicable federal regulations, but after a change occurs, the exact change may not be clear to the public.1 Furthermore, because ambiguity may exist regarding whether a particular court ruling or other action in fact triggers an automatic SIP revision under Georgia's automatic rescission clause, it may not be clear to the public whether the SIP has changed at all. Due to this ambiguity with respect to how the SIP might be revised under Georgia's proposed automatic rescission clause in the wake of a triggering action, EPA concludes that approval of the automatic rescission clause into Georgia's SIP would authorize future SIP revisions without reasonable public notice in violation of CAA section 110(l).

Comment 2: Georgia EPD states that after the D.C. Circuit issued its Amended Judgment in Coalition for Responsible Regulation v. EPA, 606 Fed. Appx. 6; 2015 U.S. App. LEXIS 11132 (D.C. Cir. 2015) (issued in response to the Supreme Court's decision in Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427 (2014)), EPA removed the affected portions of the federal PSD regulations without providing an opportunity for public comment because EPA deemed the action to be ministerial. See 80 FR 50199 (August 19, 2015). According to Georgia EPD, its rescission clause is no different than the process utilized by EPA in this rule to remove vacated permitting requirements from federal regulations following the Supreme Court's decision.

Likewise, GIEC states that EPA's removal of 40 CFR 52.21(b)(49)(v) as a ministerial act performed without notice-and-comment establishes that Georgia's proposed automatic rescission clause, to the extent that it operates to invalidate Georgia's incorporation of 40 CFR 52.21(b)(49)(v), would not contravene the public notice requirements of CAA section 110(l). Quoting from EPA's Federal Register notice, GIEC points out that EPA characterized its removal of 40 CFR 52.21(b)(49)(v) from the CFR as a “necessary ministerial act” for which the Agency determined “it was not necessary to provide a public hearing or an opportunity for public comment.” GIEC further notes that EPA stated that “notice-and-comment would be contrary to the public interest because it would unnecessarily delay the removal from the CFR of the Tailoring Rule Step 2 PSD permitting provisions that the Supreme Court held were invalid.”

Response 2: EPA disagrees with these comments. The April 2015 EPA rule referenced by the Commenter did not revise a SIP submitted by a state for EPA approval. Thus, EPA's rule was not subject to the procedures applicable to the revisions of SIPs. EPA's rule revised section 40 CFR 51.166, which governs the content of state SIP submissions. But the EPA rule did not revise any SIP submitted by a state.

CAA section 110(l) requires without exception that “[e]ach revision” to a SIP submitted to EPA for approval be adopted by the state “after reasonable notice and public hearing.” See 42 U.S.C. 7410(l). Thus, there are no circumstances under which a state can revise its SIP without providing for public notice and comment on the revision.

EPA's April 2015 action was not governed by section 110(l) of the CAA. That rule was promulgated under the Administrative Procedures Act (APA). Section 307(d) of the CAA says that the rulemaking procedures in that section “shall not apply in the case of any rule or circumstance referred to in subparagraphs (A) and (B) of subsection 553(b) of Title 5.” Subparagraph (B) of this section in the APA provides that an agency need not provide notice of proposed rulemaking or opportunity for public comment when the agency for good cause finds that it is impracticable, unnecessary, or contrary to the public interest. See 5 U.S.C. 553(b). The APA does not address procedures for state actions to revise a SIP. Such actions are addressed in section 110(l) of the CAA.

In addition, although EPA's rule was not subject to public comment under an exception in the APA, EPA's action provided notice to the public of the change in the law. Georgia's rescission clause provides no mechanism for informing the public of a change in state law.

Moreover, EPA did not deem all of the regulatory revisions needed to implement the D.C. Circuit's April 10, 2015, Amended Judgment in Coalition for Responsible Regulation v. EPA to be ministerial. To the contrary, EPA explained in the final rule removing certain vacated elements from the federal PSD and title V regulations that the action did not fully address all of the revisions needed to implement the Amended Judgment because “[t]hose additional revisions to the PSD and title V regulations, although necessary to implement the Coalition Amended Judgment, are not purely ministerial in nature and will be addressed in [a] separate notice-and-comment rulemaking, which will give the public an opportunity to comment on how the EPA proposed to address those portions of the Coalition Amended Judgment.” See 80 FR 50199, 50200 (August 19, 2015) (emphasis added). It is unclear how these more complex regulatory changes would be handled under Georgia's proposed automatic rescission clause. In any event, even if Georgia had the authority to revise its SIP without providing for public notice and comment—which it does not—EPA's decision to provide public notice but no opportunity for public comment on certain regulatory changes that it considered to be ministerial in no way supports Georgia EPD's claim that it would be appropriate to deem all of the SIP revisions needed to remove vacated GHG permitting elements to be ministerial and to make such changes to Georgia's SIP without any public notice or opportunity for public comment.

Finally, Georgia's proposed automatic rescission clause is not limited to GHG permitting requirements. Rather, the clause applies broadly to actions that affect “all or any portion of 40 CFR 52.21” that contain the term “subject to regulation.” See Georgia Rule 391-3-1-.02(7)(a)(2)(iv). Thus, arguments regarding the alleged lack of ambiguity with respect to changes needed to address a triggering action pertaining to GHG permitting in particular are insufficient to support EPA's approval of Georgia's automatic rescission clause. Even if a ministerial change generally (or the particular change addressed in EPA's action) could be exempt from the requirements of 110(l), because of the broad reach of Georgia's rescission clause, it is impossible to conclude in advance that every automatic SIP change resulting from a triggering action would be ministerial.

Comment 3: Georgia EPD states that the occurrence of a triggering action and the resulting rescission would not be a change to the SIP because the triggering action and rescission clause were already included in Georgia Rule 391-3-1-.02(7)(a)(2)(iv). Thus, according to Georgia EPD, the SIP is not being revised and therefore does not require approval from the Administrator.

Response 3: EPA disagrees with this comment. Georgia's proposed automatic rescission clause would automatically invalidate SIP language in response to a triggering action. Such a change would constitute a SIP revision.

Comment 4: GIEC states that “EPA's preliminary conclusion that the [automatic rescission clause] is inconsistent with 40 CFR 51.105 is incorrect because EPA has been and will be afforded adequate opportunity under the CAA and through other proceedings to ensure that any SIP change resulting from the automatic operation of the [rescission clause] is consistent with EPA's interpretation of the effect of the triggering action on the permitting requirements at 40 CFR 52.21.” GIEC states that although the rescission clause is self-executing, “Georgia EPD would implement the effect of the provision's operation through permitting decisions that, under the Georgia SIP, are expressly subject to EPA notice, comment, and objection procedures.” Specifically, GIEC contends that the “permit notice, comment, and objection procedures running to EPA's benefit provide EPA with ample opportunity to convey its interpretation of (and ultimately object to) the effect of any [rescission clause] triggering action on the permitting requirements at 40 CFR 52.21 if EPA's interpretation of such an action conflicted with that of the Georgia EPD.”

Response 4: EPA disagrees with this comment. The CAA's SIP revision procedures are distinct from the permit notice, comment, and EPA objection procedures. Indeed, section 110(i) of the Act specifically prohibits States and EPA, except in certain limited circumstances not applicable here, from taking any action to modify any requirement of a SIP with respect to any stationary source, except in compliance with the CAA's requirements for promulgation or revision of a state plan. See 42 U.S.C. 7410(i). Thus, contrary to the Commenter's contention, EPA's opportunity to object to a state permit cannot substitute for the state's compliance with the CAA's SIP revision requirements. Because Georgia's rescission clause would automatically revise the SIP in the wake of a triggering action, by the time EPA has the opportunity to review the permit for a particular source, it will be too late for EPA to “object” to a prior SIP revision brought about by a triggering action under Georgia's automatic rescission clause. Georgia cannot substitute permit review procedures for the procedural requirements governing SIP revisions at CAA section 110(l) and 40 CFR 51.105.

Comment 5: GIEC states that it is “highly unlikely” that any action triggering the rescission clause's operation would be subject to interpretation because the provision is triggered by clear and unambiguous occurrences—the withdrawal, repeal, or revocation of all or part of the term “subject to regulation” in 40 CFR 52.21 by executive or congressional action or its invalidation or stay by the Eleventh Circuit or D.C. Circuit Courts of Appeal. GIEC further states that the triggering actions do not become operative until any such action is “final and effective.” GIEC comments that specifically with respect to GHG permitting requirements at 40 CFR 52.21(b)(49)(v), there was no ambiguity regarding the impact of the D.C. Circuit's Amended Judgment in Coalition for Responsible Regulation, which GIEC states would have been the “triggering action” if Georgia's automatic rescission clause had been approved by EPA.

According to GIEC, EPA had (and took) several opportunities to interpret the effect of the U.S. Supreme Court's decision in Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427 (2014), on the permitting requirements at 40 CFR 52.21. GIEC points to various memoranda issued by EPA after the Supreme Court's decision. GIEC also notes that as early as July 2014, EPA was on notice that the Georgia EPD construed Utility Air Regulatory Group v. EPA to invalidate 40 CFR 52.21(b)(49)(v) and, accordingly, the SIP provision adopting that regulation was “no longer valid.” GIEC states that to its knowledge, EPA did not object to the Georgia EPD's construction of Utility Air Regulatory Group v. EPA or the Division's conclusions regarding the validity of 40 CFR 52.21(b)(49)(v) and the Georgia SIP provision incorporating it. GIEC concludes that in light of the straightforward and unambiguous manner in which Georgia's rescission clause automatically operated as a result of the issuance of the D.C. Circuit's Amended Judgment in Coalition for Responsible Regulation and the opportunities EPA had and took to determine the effect of Utility Air Regulatory Group v. EPA on the permitting requirements at 40 CFR 52.21, it is incorrect and appears somewhat disingenuous for EPA to preliminarily conclude that the rescission clause is inconsistent with 40 CFR 51.105.

Response 5: EPA disagrees with this comment. Contrary to GIEC's contention, it is not “highly unlikely” that any action triggering operation of Georgia's automatic rescission clause would be subject to interpretation. Among other actions, the automatic rescission clause would be triggered by a decision by the U.S. Court of Appeals for the Eleventh Circuit or the District of Columbia Circuit that declares a portion of 40 CFR 52.21 to be “invalid.” It is sometimes the case that the precise regulatory changes needed to address a court decision involve more than simply removing the provision at issue. Under such circumstances, the exact changes to SIP requirements brought about by a triggering action under Georgia's automatic rescission clause would be unclear.

Rather than support GIEC's argument, the D.C. Circuit's Amended Judgment in Coalition for Responsible Regulation v. EPA, 606 Fed. Appx. 6; 2015 U.S. App. LEXIS 11132 (D.C. Cir. 2015) provides a useful example of a triggering action that involves some degree of ambiguity with respect to how it impacts regulatory requirements. The D.C. Circuit ordered, among other things, that “the regulations under review . . . be vacated to the extent they require a stationary source to obtain a PSD permit if greenhouse gases are the only pollutant (i) that the source emissions or has the potential to emit above the applicable major source thresholds, or (ii) for which there is a significant emissions increase from a modification.” 2015 U.S. App. LEXIS 11132, at 130-131. The Court further ordered “that EPA take steps to rescind and/or revise the applicable provisions of the Code of Federal Regulations as expeditiously as practicable to reflect the relief granted,” and “that EPA consider whether any further revisions to its regulations are appropriate” in light of the Supreme Court's decision in Utility Air Regulatory Group v. EPA. Id. at 131. As explained above, EPA subsequently published a final action removing some, but not all, of the regulatory provisions impacted by the D.C. Circuit's Amended Judgment. See 80 FR at 50199. EPA explained in that notice that some of the regulatory changes needed to address the Amended Judgment are not purely ministerial. Id. at 50200. Because those regulatory changes involve the exercise of EPA's discretion to some extent, EPA intends to publish a separate Federal Register notice proposing those changes and soliciting public comment. Id.

Thus, contrary to GIEC's argument, it cannot be assumed that Georgia's automatic rescission clause would be triggered only by “clear and unambiguous occurrences.” Rather, as illustrated by EPA's efforts to respond to the D.C. Circuit's Amended Judgment in Coalition for Responsible Regulation v. EPA, there may be ambiguity with respect to the precise change to the permitting requirements in Georgia's SIP that would result from a triggering action under the automatic rescission clause. Because Georgia's automatic rescission clause would automatically change Georgia's SIP without public notice or EPA approval, any ambiguity regarding the regulatory impact of the triggering action would lead to ambiguity for regulated entities and the general public regarding the applicable SIP permitting requirements. This is especially true because while the automatic rescission clause would render the affected SIP provisions “invalid,” the invalid text would not be removed or otherwise identified. Thus, it would not necessarily be clear to the public and regulated entities which SIP requirements remain in effect and which have been rendered invalid. Significantly, Georgia EPD (and Georgia courts) may disagree with EPA regarding the regulatory changes brought about by a triggering action under Georgia's automatic rescission clause. Thus, in the wake of a triggering action, Georgia's SIP may not be consistent with federal regulations. Given the uncertainty regarding what SIP revisions may result from the future operation of Georgia's automatic rescission clause, EPA cannot at this time “approve” such future SIP revisions in accordance with 40 CFR 51.105.

Comment 6: Georgia EPD comments that the Supreme Court issued its decision in Utility Air Regulatory Group v. EPA on June 23, 2014. Georgia EPD then states: “Ten months later, EPA still had not made any revisions to the federal PSD or Title V permitting requirements. As a result, on April 10, 2015, the D.C. Circuit Court issued an amended judgment in Coalition for Responsible Regulation, Inc. v. Environmental Protection Agency, 606 Fed. Appx. 6; 2015 U.S. App. LEXIS 11132, which vacated the Tailoring Rule to the extent that it requires sources to obtain PSD or Title V permits solely due to a potential to emit GHGs. This prompted EPA to remove portions of those regulations from the Federal Register that were initially promulgated in 2010.” According to Georgia EPD: “Because EPA did not publish the Final Rule in the Federal Register until August 2015, without an immediate rescission clause, facilities would have been required to continue to follow the provisions in the Tailoring Rule for an additional 14 months after the Court vacated the rule. The [Georgia] EPD automatic rescission clause immediately did what it took EPA fourteen (14) months to do.”

Response 6: EPA disagrees with this comment. First, Georgia EPD's comment reflects some misconceptions regarding the aftermath of the Supreme Court's decision in Utility Air Regulatory Group v. EPA. Contrary to Georgia EPD's suggestion, it was not EPA's delay in revising the federal permitting regulations that resulted in the D.C. Circuit issuing its Amended Judgment. Rather, the D.C. Circuit was acting in response to the Supreme Court's remand of the case back to the D.C. Circuit for issuance of an amended judgment and mandate consistent with the Supreme Court's opinion. Consistent with standard judicial practice, following the Supreme Court's remand of the case to the D.C. Circuit, EPA briefed the D.C. Circuit on what the agency considered to be the appropriate relief and waited for the D.C. Circuit to issue its Amended Judgment and mandate before taking action to remove provisions from the federal PSD and title V regulations. Notably, the parties to the litigation had differing views as to how the Supreme Court's decision should impact the federal regulations. The D.C. Circuit issued its Amended Judgment on April 10, 2015, and EPA published a final rule in the Federal Register on August 19, 2015, removing those portions of the federal permitting regulations that the D.C. Circuit specifically identified as vacated. See 80 FR at 50199. However, as discussed above, EPA concluded that some of the regulatory changes needed to address the D.C. Circuit's Amended Judgment are not purely ministerial and therefore, EPA will address these changes in a separate notice-and-comment rulemaking. Id. at 50200.

Georgia EPD's comment also reflects some confusion regarding how Georgia's automatic rescission clause operates. Specifically, Georgia EPD apparently believes that the Supreme Court's decision, itself, was the triggering action under the automatic rescission clause. See Georgia EPD Comments at 2-3. Industry commenters, on the other hand, take the position that it was the D.C. Circuit's Amended Judgment that served as the triggering action. See GIEC Comments at 5. This disagreement between Georgia EPD and industry commenters underscores EPA's statement in the NPR that in addition to ambiguity regarding how the SIP might be revised in the future by operation of the automatic rescission clause, there may also be confusion regarding “whether a court ruling or other action in fact triggers an automatic SIP revision under Georgia's automatic rescission clause.” See 80 FR at 45637. In contrast, when a SIP revision is made in accordance with statutory and regulatory requirements, there is no ambiguity regarding how and when the SIP is changed.

Regarding Georgia EPD's comment that without the automatic rescission clause, “facilities would have been required to continue to follow the provisions in the Tailoring Rule for an additional 14 months after the [Supreme] Court vacated the rule,” EPA notes that shortly after the Supreme Court issued its decision, EPA announced that it would no longer apply or enforce federal regulatory provisions or the EPA-approved PSD SIP provisions that require a stationary source to obtain a PSD permit if greenhouse gases are the only pollutant: (i) That the source emits or has the potential to emit above the major source thresholds, or (ii) for which there is a significant emissions increase and a significant net emissions increase from a modification (e.g., 40 CFR 52.21(b)(49)(v)). Memorandum from Janet G. McCabe, Acting Asst. Adm'r, Office of Air & Radiation, to Regional Administrators, Regions 1-10, Next Steps and Preliminary Views on the Application of Clean Air Act Permitting Programs to Greenhouse Gases Following the Supreme Court's Decision in Utility Air Regulatory Group v. EPA (July 24, 2014), at 2 (available at http://www3.epa.gov/nsr/documents/20140724memo.pdf). EPA further announced that it did not intend to continue applying regulations that would require that states include in their SIP a requirement that such sources obtain PSD permits.” Id. Georgia can exercise this same discretion with respect to enforcement of state GHG permitting requirements affected by the Supreme Court's decision that the State has not yet had the opportunity to revise.

EPA appreciates Georgia's desire to enable its SIP to automatically update to reflect actions that invalidate federal regulatory requirements. As Georgia EPD noted in its comments, there are some types of automatic updating provisions that EPA has found to be approvable. Specifically, EPA concluded that the automatic rescission clauses adopted by TDEC and LMAPCD were approvable because under those provisions, no change to the SIP will occur until EPA publishes a Federal Register document announcing that a portion of 40 CFR 52.21 has been stayed, vacated, or withdrawn. See 77 FR at 12485 (TDEC provision); 77 FR at 62153 (LMAPCD provision). Another acceptable approach would be to enable the SIP to automatically update to reflect revisions to 40 CFR 52.21.

Comment 7: Georgia EPD states that EPA has itself adopted a similar automatic rescission clause in a note to paragraph (b)(2)(iii)(a) of 40 CFR 52.21, which states: “By court order on December 24, 2003, the second sentence of this paragraph (b)(2)(iii)(a) is stayed indefinitely. The stayed provisions will become effective immediately if the court terminates the stay.”

Response 7: EPA disagrees with this comment. The language in 40 CFR 52.21 cited by Georgia EPD has no substantive effect on the regulations and therefore is not an automatic rescission clause. It was added by EPA to clarify for the public that paragraph (b)(2)(iii)(a) was stayed indefinitely by the D.C. Circuit in State of New York v. EPA, No. 03-1380 and consolidated cases. As EPA explained in the Federal Register notice promulgating this language, “this rule is merely a housekeeping measure that reflects the court order. The action does not have any substantive effect.” 69 FR 40274, 40275. In any event, as discussed above, EPA's procedural obligations derive from the APA, not the CAA. While the APA provides some exceptions from public notice requirements, CAA section 110(l) does not.

Comment 8: GIEC states that EPA's August 19, 2015 promulgation of the Final Rule entitled “Prevention of Significant Deterioration and Title V Permitting for Greenhouse Gases: Removal of Certain Vacated Elements,” 80 FR 501999, compels the Agency to take final action to approve Georgia's rescission clause to the extent that it operates to invalidate Georgia's incorporation of 40 CFR 52.21(b)(49)(v) and to effectively remove the paragraph from the Georgia SIP. According to GIEC, the automatic operation of the rescission clause to invalidate Georgia's incorporation of 40 CFR 52.21(b)(49)(v) is functionally identical to, and cannot be distinguished from, the ministerial action EPA performed in its August 19, 2015 Final Rule. Accordingly, GIEC contends that EPA's August 19, 2015 Final Rule rendered moot any grounds on which EPA could rely to disapprove Georgia's automatic rescission clause to the extent it operates to invalidate Georgia's incorporation of now-vacated and removed 40 CFR 52.21(b)(49)(v). GIEC further claims that EPA's final rule removing 40 CFR 52.21(b)(49)(v) establishes that the rescission clause's invalidation of Georgia's incorporation of 40 CFR 52.21(b)(49)(v) would not contravene 40 CFR 51.105 because such invalidation is consistent with EPA's interpretation of the triggering action on federal permitting requirements at 40 CFR 52.21.

Response 8: EPA disagrees with this comment. It is not possible for EPA to approve Georgia's automatic rescission clause only for the limited purpose of enabling the automatic rescission of Georgia's incorporation by reference of 40 CFR 52.21(b)(49)(v). The plain language of the rescission clause extends well beyond the GHG permitting requirements to encompass “all of any portion of 40 CFR 52.21” that contains the term “subject to regulation” that is impacted by a triggering action. See Georgia Rule 391-3-1-.02(7)(a)(2)(iv). As explained above, EPA concludes that it cannot approve this language into Georgia's SIP because it would allow for future automatic SIP revisions without reasonable public notice as required by CAA 110(l) and without EPA approval as required by 40 CFR 51.105.

Comment 9: GIEC states that EPA's approval of the rescission clause to the extent that it operates to invalidate 40 CFR 52.21(b)(49)(v) would avoid unnecessary delay in removal of this provision from the Georgia SIP, and that such delay could likely result in confusion on the part of the regulated industry about how the D.C. Circuit's Amended Judgment affects the PSD and Title V regulations and PSD permitting requirements administered by the Georgia EPD.

Response 9: With respect to GIEC's concern that any delay in removing Georgia's incorporation of 40 CFR 52.21(b)(49)(v) into its SIP could likely result in confusion on the part of the regulated industry regarding applicable PSD permitting requirements, as acknowledged by the commenter, EPA has issued several memoranda explaining how EPA interprets the effect of the U.S. Supreme Court's decision on PSD permitting requirements, and these memoranda are available on EPA's Web site. Further information regarding EPA's interpretation of the impact of the Court's decision appears in the August 19, 2015, Federal Register notice removing certain vacated provisions from the CFR. See 80 FR at 50199. Finally, as discussed above, EPA has announced that it will no longer apply or enforce federal regulatory provisions or the EPA-approved PSD SIP provisions that require a stationary source to obtain a PSD permit if greenhouse gases are the only pollutant (i) that the source emits or has the potential to emit above the major source thresholds, or (ii) for which there is a significant emissions increase and a significant net emissions increase from a modification (e.g., 40 CFR 52.21(b)(49)(v)). Georgia can exercise this same discretion with respect to enforcement of state GHG permitting requirements affected by the Supreme Court's decision (and the D.C. Circuit's subsequent Amended Judgment) that the State has not yet had the opportunity to revise. Regarding GIEC's concerns with respect to the Title V operating permit regulations, EPA notes that today's final action does not impact Georgia's approved Title V program because a state's title V regulations are not incorporated into the SIP and are not subject to SIP revision procedures.

Comment 10: Georgia EPD states that “if the federal GHG rule (or part of the federal rule) is vacated and considered invalid or stayed by the Courts, it should be immediately removed from the Georgia SIP. The state rulemaking process can be time consuming and may not be capable of responding to judicial, executive (including EPA), or congressional action in time to allow the permitting process to remain consistent with federal requirements. Therefore, Georgia EPD created the rescission clause to ensure that Georgia's PSD rule will be consistent with federal requirements at all times.”

Response 10: EPA appreciates Georgia's desire to ensure that the permitting requirements in its SIP remain consistent with federal requirements. However, Georgia's proposed automatic rescission clause would create the possibility that Georgia's SIP would be inconsistent with federal requirements in the wake of a triggering action. Specifically, Georgia's proposed rescission clause would revise Georgia's SIP automatically following a triggering action, without waiting for EPA's public notice explaining how exactly the triggering action impacts federal requirements. Georgia EPD (and Georgia courts) may disagree with EPA regarding the regulatory changes brought about by a triggering action under Georgia's automatic rescission clause, resulting in confusion for regulated entities and the general public. This possibility of inconsistency between the Georgia SIP and federal regulatory requirements, and the lack of public notice regarding such inconsistency, makes Georgia's proposed automatic SIP revision different from other automatic updating mechanisms that EPA has found to be approvable. For example, as Georgia EPD noted in its comments, EPA concluded that the automatic rescission clauses adopted by TDEC and LMAPCD were approvable because under those provisions, no change to the SIP will occur until EPA publishes a Federal Register notice announcing that a portion of 40 CFR 52.21 has been stayed, vacated, or withdrawn. See 77 FR at 12485; 77 FR at 62153. Another acceptable approach would be to enable the SIP to automatically update to reflect to the most recent version of 40 CFR 52.21, which is the approach that EPA takes with respect to Federal Implementation Plans (FIPs) that apply 40 CFR 52.21 in states that have not adopted PSD permitting requirements into their SIP. Under these alternative approaches, regulated entities and the public can be certain that any changes to the SIP resulting from automatic updating will simply reflect express changes to the federal requirements in 40 CFR 52.21, and that there will be no inconsistency between the SIP and federal permitting regulations.

Comment 11: Georgia EPD notes that EPA stated in its proposed action that disapproval of Georgia's proposed automatic rescission clause “does not impose additional requirements beyond those imposed by state law” and “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.).” However, Georgia EPD believes that requiring PSD permitting requirements for facilities that a court has vacated and considered invalid or stayed does impose additional requirements beyond those imposed by state law and does have a significant economic impact on a substantial number of small entities.

Response 11: EPA disagrees with this comment. EPA's disapproval of Georgia's automatic rescission clause does not itself impose any additional requirement on any regulated entity beyond those requirements imposed by state law. In particular, the rescission clause is merely a procedural mechanism by which requirements that EPA previously approved into Georgia's SIP at Georgia's request would be automatically invalidated in the wake of a triggering action. As discussed above, EPA has determined that it cannot approve this procedural mechanism because it contravenes CAA and regulatory requirements governing SIP revisions. This action does not impair Georgia's existing ability to request a SIP revision in accordance with the procedures set forth in the CAA and federal regulations. Because EPA's disapproval of Georgia's automatic rescission clause does not impose any additional requirement on any regulated entity, this final action will not have a significant economic impact on a substantial number of small entities. Accordingly, EPA concludes pursuant to section 605 of the Regulatory Flexibility Act, 5 U.S.C. 605, that a regulatory flexibility analysis is unnecessary.

EPA is taking final action to disapprove the provision in Georgia's January 13, 2011, SIP submittal (at Georgia Rule 391-3-1-.02(7)(a)(2)(iv)) that would automatically rescind permitting-related federal requirements in certain circumstances. Previously, EPA approved the remainder of Georgia's January 13, 2011, SIP revision, which related to PSD requirements for GHG-emitting sources and for the PM2.5 NAAQS. See 76 FR 55572 (September, 8, 2011). This action does not change what EPA previously approved. EPA notes that this disapproval action does not obligate Georgia in any way to make a new SIP submittal and does not create any potential for sanctions because this provision is not a required element of the SIP.

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 3, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

40 CFR part 52 is amended as follows:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

On July 2, 2012, EPA approved Ohio's Regional Haze SIP (77 FR 39177). Ohio's Regional Haze SIP included the applicability of BART to the State's only non-utility BART source, Glatfelter, in Chillicothe, Ohio. The BART requirement specified that two of the coal-fired boilers at this facility, No. 7 and No. 8, install control technology to limit the amount of SO2 emissions from the boilers. The compliance date for BART emission reductions was scheduled to be December 31, 2014. The compliance date was aligned with Glatfelter's expected compliance date for the Industrial Boiler Maximum Achievable Control Technology (MACT) requirements finalized by EPA in May, 2011 (76 FR 28862).

On February 6, 2014, Ohio EPA received a request from Glatfelter to extend the original compliance date to January 31, 2017. The extension request is based on the litigation, revision and new compliance date associated with the Industrial Boiler MACT. Under EPA regulations (40 CFR 51.308(3)(1)(iv)), BART is to be implemented “as expeditiously as practicable, but in no event later than 5 years after approval of the implementation plan revision.” The required compliance date is July 2, 2017.

This rulemaking addresses an April 14, 2014, submission supplemented on July 27, 2015, from the Ohio EPA to extend the compliance date from December 31, 2014, to January 31, 2017. One of the requests within the April 14, 2014, SIP revision includes “the requirement that P.H. Glatfelter submit an application for modification of the federally enforceable permit (that will include a compliance date outlining, at a minimum, the specific, selected control technologies and methods of compliance) from December 31, 2013, to requiring the submittal provide for sufficient time for Ohio EPA to include these requirements, along with any appropriate monitoring, record keeping and reporting requirements, in the federally enforceable permit by no later than January 31, 2017.”

Ohio EPA supplemented its original submittal on July 27, 2015, with a revised federally enforceable permit for Glatfelter that included the new compliance date. Ohio EPA made the federally enforceable permit available for public comment on June 6, 2015, and comments were accepted through July 7, 2015. The Ohio EPA consulted the Federal Land Managers and included them in the public comment process. Two comments were received and those comments, along with Ohio EPA's responses were included in the July 27, 2015, submittal.

The CAA and the Regional Haze Rule require BART controls to be installed as expeditiously as practicable, but in no event later than five years after approval of the Regional Haze implementation plan revision. The proposed rulemaking associated with this final action was published on December 9, 2015 (236 FR 76403), and EPA received no comments during the comment period, which ended on January 8, 2016. EPA is therefore taking final action to approve, as proposed, Ohio's submission.

EPA is approving a revision to the Ohio SIP submitted by the State of Ohio on April 14, 2014, supplemented on July 27, 2015, related to BART requirements for Glatfelter. Specifically, EPA is extending the compliance date for the SO2 emission limits applicable to Boilers No. 7 and No. 8 at Glatfelter by 25 months from December 31, 2014, to January 31, 2017.

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 Ohio permit described in the amendments to 40 CFR part 52 set forth below. EPA has made, and will continue to make, these documents generally available electronically through www.regulations.gov and/or in hard copy at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).

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:

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 3, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

In FR Doc. 2015-25595 of October 16, 2015 (80 FR 62762), in the final rule with comment period titled “Medicare and Medicaid Programs; Electronic Health Record Incentive Program—Stage 3 and Modifications to Meaningful Use in 2015 through 2017” (hereafter referred to as the “2015 EHR Incentive Programs final rule with comment period”), there were a number of technical errors that are identified and corrected in this correcting amendment. The provisions in this document are treated as if they had been included in the 2015 EHR Incentive Programs final rule with comment period.

In the 2015 EHR Incentive Programs final rule with comment period, we specified the requirements that eligible professionals (EPs), eligible hospitals, and critical access hospitals (CAHs) must meet in order to participate in the Medicare and Medicaid EHR Incentive Programs and successfully demonstrate meaningful use of certified EHR technology. In addition, it changed the Medicare and Medicaid EHR Incentive Programs reporting period in 2015 to a 90-day period aligned with the calendar year. It also removed reporting requirements on measures that have become redundant, duplicative, or topped out from the Medicare and Medicaid EHR Incentive Programs. In addition, it established the requirements for Stage 3 of the program as optional in 2017 and required for all participants beginning in 2018. The final rule with comment period continues to encourage the electronic submission of clinical quality measure (CQM) data, establishes requirements to transition the program to a single stage, and aligns reporting for providers in the Medicare and Medicaid EHR Incentive Programs.

On page 62767, in our discussion of certified EHR technology requirements for the EHR Incentive Program, we made a typographical error in the word “use” in the sentence specifying that providers may continue to use technology certified to the 2014 Edition until EHR technology certified to the 2015 Edition is required with an EHR reporting period beginning in 2018.

On page 62801, in our response to the public comment regarding “Objective 4: Electronic Prescribing” we made a typographical error in the word “distinguish” in the sentence specifying that we will no longer distinguish between prescriptions for controlled substances.

On page 62806, in our response to a public comment regarding “Objective 4: Electronic Prescribing” and the pathways acceptable for transmitting Summary of Care records, we inadvertently omitted the word “have” in the sentence specifying that to count in the numerator the sending provider must have reasonable certainty of receipt of the summary of care document. In addition, there is typographical error and the word “obtain” was omitted causing an incomplete sentence which reads “Instead, r the referring provider must confirmation”. This sentence is corrected to read “Instead, the referring provider must obtain confirmation”.

On page 62819, we made a typographical error in our discussion regarding previous registrations with a public health agency or clinical data registry that occurred in a previous stage of meaningful use could count toward Active Engagement Option 1 for any of the EHR reporting periods in 2015, 2016 or 2017.

On page 62825, in Table 6—PUBLIC HEALTH REPORTING OBJECTIVE MEASURES FOR EPs, ELIGIBLE HOSPITALS, AND CAHs IN 2015 THROUGH 2017, we inadvertently included the phrase “with a public health agency” in the description of the Measure 3 Specialized Registry Reporting “Measure Specification” in error.

On page 62834, in our response to a public comment regarding the eventual progression toward universal inclusion of controlled substances in electronic prescribing as a desired goal, we made a grammatical error.

On page 62868, in our response to a public comment regarding reporting to specialized registries, we made a typographical error in the cross-reference for the section outlining the Specialized Registry Reporting measure for 2015 through 2017.

On page 62885, in Table 15—EP OBJECTIVES, MEASURES, AND CERTIFICATION CRITERIA FOR STAGE 3 IN 2018 AND SUBSEQUENT YEARS, we made technical errors in the descriptions of Measures 1 and 2 of Objective 6—Coordination of Care through Patient Engagement where the table text does not match the correct text in the preamble and regulation text for the correct year.

On page 62883, in TABLE 14—ELIGIBLE HOSPITAL/CAH OBJECTIVES, MEASURES, AND CERTIFICATION CRITERIA FOR STAGE 3 IN 2017, we made technical errors in the threshold description for Measures 1 and 2 of Objective 6 where the table text does not match the correct text in the preamble and regulation text for the correct year.

On page 62928, in Table 25—ESTIMATED ANNUAL INFORMATION COLLECTION BURDEN, we made typographical errors in the regulatory citations listed in the first column of the table.

On page 62945, in § 495.22(e)(3)(ii)(C)(3), we erroneously stated that the alternate exclusion applies for only measure 3 for EPs scheduled to be in Stage 1 in 2016 instead of stating that the exclusion applies for both measures 2 and 3 for EPs scheduled to be in Stage 1 in 2016.

On page 62948, in § 495.22(e)(10)(ii)(C)(3), we incorrectly referenced EPs instead of eligible hospitals or CAHs in specifying the exclusion for the immunization registry reporting measure.

On page 62951, in § 495.24(d)(7)(i)(B)(3), we erroneously stated that the provider must implement clinical information reconciliation for “two of the following three” clinical information sets instead of stating that the provider must implement clinical information reconciliation for “the following three” clinical information sets, which is consistent with the proposed regulation text (80 FR 16800) and the description in the final rule preamble (80 FR 62862).

On page 62952, in § 495.24(d)(7)(ii)(B)(3), we erroneously stated that the provider must implement clinical information reconciliation for “two of the following three” clinical information sets instead of stating that the provider must implement clinical information reconciliation for “the following three” clinical information sets, which is consistent with the proposed regulation text (80 FR 16801) and the description in the final rule preamble (80 FR 62862).

Under 5 U.S.C. 553(b) of the Administrative Procedure Act (APA), the agency is required to publish a notice of the proposed rule in the Federal Register before the provisions of a rule take effect. Similarly, section 1871(b)(1) of the Act requires the Secretary to provide for notice of the proposed rule in the Federal Register and provide a period of not less than 60 days for public comment. In addition, section 553(d) of the APA, and section 1871(e)(1)(B)(i) of the Act mandate a 30-day delay in effective date after issuance or publication of a rule. Sections 553(b)(B) and 553(d)(3) of the APA provide for exceptions from the notice and comment and delay in effective date APA requirements; in cases in which these exceptions apply, sections 1871(b)(2)(C) and 1871(e)(1)(B)(ii) of the Act provide exceptions from the notice and 60-day comment period and delay in effective date requirements of the Act as well. Section 553(b)(B) of the APA and section 1871(b)(2)(C) of the Act authorize an agency to dispense with normal rulemaking requirements for good cause if the agency makes a finding that the notice and comment process are impracticable, unnecessary, or contrary to the public interest. In addition, both section 553(d)(3) of the APA and section 1871(e)(1)(B)(ii) of the Act allow the agency to avoid the 30-day delay in effective date where such delay is contrary to the public interest and an agency includes a statement of support.

We believe that this document does not constitute a rulemaking that would be subject to these requirements. This document corrects technical and typographic errors in the preamble and regulation text included in the 2015 EHR Incentive Programs final rule with comment period. The corrections contained in this document are consistent with, and do not make substantive changes to, the policies that were adopted subject to notice and comment procedures in the final rule with comment period. As a result, the corrections made through this document are intended to ensure that the 2015 EHR Incentive Programs final rule with comment period accurately reflects the policies adopted in that rule. In addition, even if this were a rulemaking to which the notice and comment procedures and delayed effective date requirements applied, we find that there is good cause to waive such requirements. Undertaking further notice and comment procedures to incorporate the corrections in this document into the final rule with comment period or delaying the effective date would be contrary to the public interest because it is in the public's interest for eligible professionals, eligible hospitals, and critical access hospitals to be advised, in a timely manner, of the meaningful use criteria and EHR reporting periods that they must meet in order to qualify for Medicare and Medicaid electronic health record incentive payments and avoid payment reductions under Medicare, and to ensure that the final rule with comment period accurately reflects our policies as of the date they take effect and are applicable. Furthermore, such procedures would be unnecessary, as we are not altering our policies; rather, we are simply implementing correctly the policies that we previously proposed, received comment on, and subsequently finalized. This correcting document is intended solely to ensure that the 2015 EHR Incentive Programs final rule with comment period accurately reflects these policies. Therefore, we believe we have good cause to waive the notice and comment and effective date requirements.

In FR Doc. 2015-25595 of October 16, 2015 (80 FR 62762), we are making the following corrections:

1. On page 62767, first column, first full paragraph, line 16, the phrase “continue to usher” is corrected to read “continue to use”.

2. On page 62801, second column, first full paragraph, line 32, the phrase “longer distinguishing between” is corrected to read “longer distinguish between”.

3. On page 62806, third column, first paragraph—

a. Lines 4 and 5, the phrase “must reasonable certainty” is corrected to read “must have reasonable certainty”.

b. Line 9 and 10, the phrase “Instead, r the referring provider must confirmation” is corrected to read “Instead, the referring provider must obtain confirmation”.

4. On page 62819, second column, last paragraph, line 12, the phrase “a previous stages” is corrected to read “a previous stage”.

5. On page 62825, in TABLE 6—PUBLIC HEALTH REPORTING OBJECTIVE MEASURES FOR EPS, ELIGIBLE HOSPITALS, AND CAHS IN 2015 THROUGH 2017, second column (Measure specification column for Measure 3) lines 5 and 6, the phrase “The EP, eligible hospital, or CAH is in active engagement with a public health agency to submit data to a specialized registry” is corrected to read “The EP, eligible hospital, or CAH is in active engagement to submit data to a specialized registry”.

6. On page 62834, first column, last paragraph, line 22, the phrase “distinguishing between” is corrected to read “distinguish between”.

7. On page 62868, second column, first full paragraph, lines 39 and 40, the phrase “section aII.B.2.b.x for further information” is corrected to read “Objective 10 in section II.B.2.a. of this final rule for further information”.

8. On page 62883, in Table 14—ELIGIBLE HOSPITAL/CAH OBJECTIVES, MEASURES, AND CERTIFICATION CRITERIA FOR STAGE 3 IN 2017—CONTINUED, second column—

a. Second set of paragraphs, second paragraph (Measure 1 of Objective 6), line 2, the phrase “more than 10 percent” is corrected to read “more than 5 percent”.

b. Third set of paragraphs, last paragraph (Measure 2 of Objective 6) line 1, the phrase “more than 25%” is corrected to read “more than 5%”.

9. On page 62885, in TABLE 15—EP OBJECTIVES, MEASURES, AND CERTIFICATION CRITERIA FOR STAGE 3 IN 2018 AND SUBSEQUENT YEARS, second column—

a. Line 17 from the bottom of the column (Measure 1 of Objective 6), the phrase “Measure 1: For 2017, during the EHR reporting period” is corrected to read “Measure 1: During the EHR reporting period”.

b. Line 6 from the bottom of the column (Measure 2 of Objective 6), the phrase “Measure 2: For 2017, more than 25%” is corrected to read “Measure 2: More than 25%”.

10. On page 62928, in TABLE 25—ESTIMATED ANNUAL INFORMATION COLLECTION BURDEN, the first column (Reg. Section)—

a. Line 1, the citation “§ 495.x” is corrected to read “§ 495.24”

b. Line 3, the citation “§ 495.6” is corrected to read “§ 495.22”.

As noted in section II.B. of this document, the Centers for Medicare & Medicaid Services is making the following correcting amendments to 42 CFR part 495:

In FR Doc. 2015-29438 of November 24, 2015 (80 FR 73274), the final rule entitled “Comprehensive Care for Joint Replacement Payment Model for Acute Care Hospitals Furnishing Lower Extremity Joint Replacement Services” there were a number of technical and typographical errors that are identified and corrected in this correcting amendment. The provisions in this correcting amendment are effective as if they had been included in the final rule appearing in the November 24, 2015 Federal Register.

On pages 73274 and 73282, we made an error in identifying the acronym “MS-DRG”.

On pages 73289, 73335, 73412, 73526, and 73528, we made inadvertent typographical errors which included the omission and addition of words, symbols, and lines of text.

On pages 73324, 73381, and 73535, we made typographical errors in the Medicare Severity Diagnosis Related Group (MS-DRG) and National Quality Forum (NQF) numbers.

On page 73324, we made typographical and grammatical errors when specifying several regulatory citations.

On pages 73338, 73355, 73357, and 73358, in our discussion of the “Episode Price Setting Methodology”, we implied that the calculation of prospective target prices will incorporate the effective discount percentage determined by quality performance under the model. We clarify that target prices will be determined prospectively using a 3 percent discount percentage, and hospitals may experience a different effective discount percentage at reconciliation due to quality.

On page 73362, in our discussion of the “Methodology To Determine Performance on the Quality Measures”, we made an error in the data submission requirements for the percentage of the eligible elective primary THA/TKA patients needed.

On page 73543, in the regulations text for § 510.300, we erroneously included a paragraph regarding adjustments for quality performance (paragraph (a)(4)). We note that as specified in the final rule, target prices will be determined prospectively using a 3 percent discount percentage, and hospitals may experience a different effective discount percentage at reconciliation due to quality. To correct this error, we have removed paragraph (a)(4) and renumbered the subsequent paragraph (that is, the current paragraph (a)(5)) .

On page 73544, in the regulation text at § 510.300(c)(2) (Determination of episode target prices) we inadvertently omitted the discount factor for repayment amounts in program years (PYs) 4 and 5. To correct this error, we have added a paragraph (c)(2)(iii).

On page 73549, in the regulation text at § 510.305, we made a cross-referencing error.

The corrections to the errors summarized in this section appear in the regulations text of this correcting amendment.

Under 5 U.S.C. 553(b) of the Administrative Procedure Act (APA), the agency is required to publish a notice of the proposed rule in the Federal Register before the provisions of a rule take effect. Similarly, section 1871(b)(1) of the Act requires the Secretary to provide for notice of the proposed rule in the Federal Register and provide a period of not less than 60 days for public comment. In addition, section 553(d) of the APA, and section 1871(e)(1)(B)(i) of the Act mandate a 30-day delay in effective date after issuance or publication of a rule. Sections 553(b)(B) and 553(d)(3) of the APA provide for exceptions from the notice and comment and delay in effective date APA requirements; in cases in which these exceptions apply, sections 1871(b)(2)(C) and 1871(e)(1)(B)(ii) of the Act provide exceptions from the notice and 60-day comment period and delay in effective date requirements of the Act as well. Section 553(b)(B) of the APA and section 1871(b)(2)(C) of the Act authorize an agency to dispense with normal rulemaking requirements for good cause if the agency makes a finding that the notice and comment process are impracticable, unnecessary, or contrary to the public interest. In addition, both section 553(d)(3) of the APA and section 1871(e)(1)(B)(ii) of the Act allow the agency to avoid the 30-day delay in effective date where such delay is contrary to the public interest and the agency includes a statement of support.

We believe that this document does not constitute a rulemaking that would be subject to these requirements. This document corrects technical and typographic errors in the preamble and regulation text included in the Medicare Program; Comprehensive Care for Joint Replacement Payment Model for Acute Care Hospitals Furnishing Lower Extremity Joint Replacement Services (80 FR 73274). The corrections contained in this document are consistent with, and do not make substantive changes to, the policies that were adopted subject to notice and comment procedures in the final rule. As a result, the corrections made through this document are intended to ensure that the Medicare Program; Comprehensive Care for Joint Replacement Payment Model for Acute Care Hospitals Furnishing Lower Extremity Joint Replacement Services final rule accurately reflects the policies adopted in that rule. In addition, even if this were a rulemaking to which the notice and comment procedures and delayed effective date requirements applied, we find that there is good cause to waive such requirements. Undertaking further notice and comment procedures to incorporate the corrections in this document into the final rule or delaying the effective date would be contrary to the public interest because it is in the public's interest for the CJR model final rule to accurately reflect our policies as of the date they take effect and are applicable. Furthermore, such procedures would be unnecessary, as we are not altering our policies; rather, we are simply implementing correctly the policies that we previously proposed, received comment on, and subsequently finalized. This correcting document is intended solely to ensure that the Medicare Program; Comprehensive Care for Joint Replacement Payment Model for Acute Care Hospitals Furnishing Lower Extremity Joint Replacement Services final rule accurately reflects these policies. Therefore, we believe we have good cause to waive the notice and comment and effective date requirements.

In FR Doc. 2015-29438 of November 24, 2015 (80 FR 73274), make the following corrections:

1. On page 73274, third column, line 18, the phrase “MS-DRG Medical Severity Diagnosis-” is corrected to read “MS-DRG Medicare Severity Diagnosis-”.

2. On page 73282, third column, last paragraph, lines 6 and 7, the phrase “Medical Severity Diagnosis-Related Group (MS-DRG)” is corrected to read “Medicare Severity Diagnosis-Related Group (MS-DRG)”.

3. On page 73289, third column, sixth full paragraph, line 2, the phrase “that that” is corrected to read “that”.

4. On page 73324—

a. Second column, first full paragraph, lines 26 and 27, the phrase “MS-DRG 569” is corrected to read “MS-DRG 469”.

b. Third column—

(1) First partial paragraph, line 2, the phrase “§ 510.210(a)” is corrected to read “§ 510.210(a).”.

(2) First full paragraph, line 3, the phrase “§ 510.2 and” is corrected to read “§ 510.210.”

(3) After the first full paragraph, the reference “§ 510.210(a).” is corrected by removing the reference.

5. On page 73335, first column, first paragraph, lines 4 and 5, the phrase “this final,” is corrected to read “this final rule,”.

6. On page 73338—

a. First column, last partial paragraph, lines 23 and 24, the phrase “will have 8 potential target prices” is corrected to read “will have potential target prices at reconciliation”.

b. Second column, first partial paragraph,

(1) Lines 3 through 5, the phrase “and between January 1 and September 30 vs. between October 1 and December 31 for performance years 2 through 5)” is corrected to read “and between January 1 and September 30 vs. between October 1 and December 31 for performance years 2 through 5), as well as different potential effective discount factors at reconciliation, which reflects quality performance, as discussed in section III.C.5.”.

(2) Lines 6 through 16, the phrase “Each participant hospital in performance years 2 and 3 will have 16 target prices for the same combinations in performance years 1, 4, and 5, but with one group of 8 potential target prices for purposes of calculating reconciliation payments and another group of 8 potential target prices for purposes of determining hospital's responsibility for excess episode spending.” is corrected to read “Each participant hospital in performance years 2 and 3 will have target prices for the same combinations as in performance years 1, 4, and 5, but with the potential for additional effective discount factors at reconciliation that reflect the reduced discount percentage for purposes of determining a hospital's responsibility for excess episode spending.”

7. On page 73355—

a. First column, third full paragraph, lines 6 and 7, the phrase “used to calculate its target prices.” is corrected to read “experienced at reconciliation”.

b. Third column, first full paragraph, lines 32 and 33, the phrase “discount factor for participant hospitals with” is corrected to read “effective discount factor at reconciliation for participant hospitals with”.

8. On page 73357, third column, last bulleted paragraph, lines 4 through 7 and page 73358, first column, first partial paragraph, lines 1 through 4, the phrase ” the appropriate effective discount factor that incorporates any quality incentive payment, as briefly described in section III.C.4.b.(9) of this final rule and more specifically detailed in the response to comments in section III.C.5. of this final rule and Tables 19, 20, and 21.” is corrected to read “a 3-percent discount factor, as described in section III.C.4.b.(9). of this final rule.”.

9. On page 73381, second column, first full paragraph, line 38, the reference “(NQF #0116)” is corrected to read “(NQF #0166)”.

10. On page 73412, third column, first full paragraph, line 29, the phrase “only be only” is corrected to read “only be”.

11. On page 73526, third column, first full paragraph, lines 27 and 28, the phrase “as well as- on other methods” is corrected to read “as well as other methods”.

12. On page 73528, first column, second paragraph, line 1, the acronym “CJR” is corrected by removing the acronym.

13. On page 73535, first column, fourth paragraph, line 14, the reference “(NQF #0116)” is corrected to read “(NQF #0166)”.

Accordingly, 42 CFR chapter IV is corrected by making the following correcting amendments to part 510:

The fishery for coastal migratory pelagic fish (king mackerel, Spanish mackerel, and cobia) is managed under the Fishery Management Plan for the Coastal Migratory Pelagic Resources of the Gulf of Mexico and South Atlantic (FMP). The FMP was prepared by the Gulf of Mexico and South Atlantic Fishery Management Councils (Councils) and is implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

On January 30, 2012 (76 FR 82058, December 29, 2011), NMFS implemented a commercial quota of 1,102,896 lb (500,265 kg) for Gulf migratory group king mackerel in the Florida east coast subzone (50 CFR 622.384(b)(1)(i)(A)). From November 1 through March 31, the Florida east coast subzone encompasses an area of the EEZ south of a line extending due east of the boundary between Flagler and Volusia Counties, FL, and north of a line extending due east of the boundary between Miami-Dade and Monroe Counties, FL. From November 1 through the end of February, king mackerel in or from the subzone may be possessed on board or landed from a permitted vessel in amounts not exceeding 50 fish per day (50 CFR 622.385(a)(2)(i)(A)).

However, beginning on March 1, if less than 70 percent of the Florida east coast subzone king mackerel commercial quota has been harvested by that date, king mackerel in or from that subzone may be possessed on board or landed from a permitted vessel in amounts not exceeding 75 fish per day (50 CFR 622.385(a)(2)(i)(B)(2)).

NMFS has determined that less than 70 percent of the quota for Gulf migratory group king mackerel in the Florida east coast subzone will be harvested by March 1, 2016. Accordingly, a 75-fish trip limit applies to vessels fishing for king mackerel in or from the EEZ in the Florida east coast subzone effective 12:01 a.m., local time, March 1, 2016. The 75-fish trip limit will remain in effect until the commercial quota is reached and the subzone closes, or until the end of the subzone's current fishing year on March 31, 2016.

The Regional Administrator, Southeast Region, NMFS, has determined this temporary rule is necessary for the conservation and management of Gulf migratory group king mackerel and is consistent with the Magnuson-Stevens Act and other applicable laws.

This action is taken under 50 CFR 622.385(a)(2)(i)(B)(2) and is exempt from review under Executive Order 12866.

These measures are exempt from the procedures of the Regulatory Flexibility Act because the temporary rule is issued without opportunity for prior notice and comment.

This action responds to the best scientific information available. The Assistant Administrator for Fisheries, NOAA (AA), finds that the need to immediately implement this commercial trip limit increase constitutes good cause to waive the requirements to provide prior notice and opportunity for public comment pursuant to the authority set forth in 5 U.S.C. 553(b)(B), because prior notice and opportunity for public comment on this temporary rule is unnecessary and contrary to the public interest. Such procedures are unnecessary because the rule establishing the trip limits has already been subject to notice and comment, and all that remains is to notify the public of the trip limit increase. Such procedures are contrary to the public interest, because prior notice and opportunity for public comment would require time, thus delaying fishermen's ability to catch more king mackerel than the present trip limit allows and preventing fishermen from reaping the socioeconomic benefits associated with this increased trip limit.

As this action allows fishermen to increase their harvest of king mackerel from 50 fish to 75 fish per day in or from the EEZ of the Florida east coast subzone, the AA finds it relieves a restriction and may go into effect without a 30-day delay in effectiveness, pursuant to 5 U.S.C. 553(d)(1).

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (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. Regulations governing sideboard protections for GOA groundfish fisheries appear at subpart B of 50 CFR part 680.

The A season allowance of the 2016 Pacific cod total allowable catch (TAC) apportioned to vessels using jig gear in the Central Regulatory Area of the GOA is 222 metric tons (mt), as established by the final 2015 and 2016 harvest specifications for groundfish of the GOA (80 FR 10250, February 25, 2015) and inseason adjustment (81 FR 188, January 5, 2016).

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator) has determined that the A season allowance of the 2016 Pacific cod TAC apportioned to vessels using jig gear in the Central Regulatory Area of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 217 mt and is setting aside the remaining 5 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by vessels using jig gear in the Central Regulatory Area of the GOA. After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

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 directed fishing closure of Pacific cod for vessels using jig gear in the Central Regulatory Area of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of February 29, 2016.

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

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