Federal Register Vol. 81, No.80,

On November 30, 2015, OPM issued a proposed rule (80 FR 74715) to abolish the Newburgh, NY, appropriated fund FWS wage area and redefine Orange County, NY, to the New York, NY, survey area; Dutchess County, NY, to the New York area of application; Delaware and Ulster Counties, NY, to the Albany-Schenectady-Troy, NY, area of application; and Sullivan County, NY, to the Scranton-Wilkes-Barre, PA, area of application. FPRAC, the national labor-management committee responsible for advising OPM on matters concerning the pay of FWS employees, reviewed and recommended this change by consensus.

The 30-day comment period ended on December 30, 2015. OPM received one comment in support of the proposal and one comment regarding the effective date of the proposed change recommending retroactive applicability.

OPM defines wage areas through regulation in 5 CFR part 532. Changes in OPM's regulations are prospective, not retroactive, following an appropriate period for public comment. These changes will apply on the first day of the first applicable pay period beginning on or after 30 days following publication of the final regulations.

I certify that these regulations will not have a significant economic impact on a substantial number of small entities because they will affect only Federal agencies and employees.

Accordingly, OPM is amending 5 CFR part 532 as follows:

This final rule is issued under Marketing Order No. 925 (7 CFR part 925), regulating the handling of table grapes grown in a designated area of southeastern California, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

This final rule is also issued under section 608e (8e) of the Act, which provides that whenever certain specified commodities, including table grapes, are regulated under a Federal marketing order, imports of these commodities into the United States are prohibited unless they meet the same or comparable grade, size, quality, or maturity requirements as those in effect for the domestically produced commodities.

The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Orders 12866, 13563, and 13175.

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

There are no administrative procedures which must be exhausted prior to any judicial challenge to the provisions of import regulations issued under section 8e of the Act.

This final rule revises the order's administrative rules and regulations and the import regulations to allow handlers and importers to ship grapes that do not meet the minimum grade and size quality requirements to be donated to charitable organizations. Any such grapes shall not be used for resale. This action provides an additional outlet for grapes regulated under the order and supports USDA's efforts to reduce food waste under the U.S. Food Waste Challenge. The change in the import regulation is required under section 8e of the Act. These actions were unanimously recommended by the Committee following deliberations at a public meeting held on November 5, 2013, and a required new Food Donation Form (CDGAC Form No. 8) was subsequently approved at a meeting held on October 30, 2014.

Section 925.54 of the order provides that regulations in effect pursuant to § 925.41, § 925.52, or § 925.55 may be modified, suspended, or terminated to facilitate handling of grapes for purposes which may be recommended by the Committee and approved by the Secretary, and that rules, regulations, and safeguards shall be prescribed to prevent grapes handled under the provisions of this section from entering the channels of trade for other than the specific purposes authorized by this section.

This final rule amends § 925.304 of the administrative rules and regulations to provide an outlet for grapes failing to meet inspection and quality requirements. The final rule allows handlers to donate such grapes to charitable organizations. Any such grapes may not be used for resale.

Accordingly, to prohibit such donated grapes from being sold, and to prevent other unauthorized distribution of such shipments, the Committee developed CDGAC Form No. 8 to track the shipment of these grapes and verify their receipt by the intended charitable organization.

Section 925.60 of the order provides authority for the Committee, with the approval of USDA, to require handlers to furnish reports and information to the Committee as needed to enable the Committee to perform its duties under the order. This rule revises § 925.160(c) of the order's administrative rules and regulations. It requires handlers donating grapes to a charitable organization to ensure CDGAC Form No. 8 is completed, signed, and furnished to the Committee within two days of receipt by the intended charity.

These actions were unanimously recommended by the Committee following deliberations at a public meeting held on November 5, 2013, and the new form was subsequently approved at a meeting held on October 30, 2014. This action provides handlers and importers with an outlet for grapes that do not meet minimum quality requirements and supports the U.S. Secretary of Agriculture's initiative to reduce, recover, and recycle food in conjunction with the U.S. Food Waste Challenge.

Under section 8e of the Act, minimum grade, size, quality, and maturity requirements for table grapes imported into the United States are established under Table Grape Import Regulation 4 (7 CFR 944.503) (import regulation), and safeguard procedures for certain commodities exempt from these requirements are established under § 944.350. A change in the California Desert Grape Regulation 6, § 925.304, that allows table grapes to be donated to charitable organizations requires a corresponding change to the requirements for imported table grapes. Similar to the domestic industry, this action allows importers to donate table grapes to charitable organizations. Sections 944.350(a)(1) and 944.503(d) and (e) are revised accordingly.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

There are approximately 13 handlers of southeastern California table grapes who are subject to regulation under the marketing order and approximately 41 grape producers in the production area. In addition, there are about 135 importers of grapes. Small agricultural service firms are defined by the Small Business Administration (SBA) as those having annual receipts of less than $7,500,000, and small agricultural producers are defined as those having annual receipts of less than $750,000 (13 CFR 121.201).

Ten of the 13 handlers subject to regulation have annual grape sales of less than $7,500,000 according to USDA Market News Service and Committee data. Based on information from the Committee and USDA's Market News Service, it is estimated that at least 10 of the 41 producers have annual receipts of less than $750,000. Thus, it may be concluded that a majority of grape handlers regulated under the order and about 10 of the producers could be classified as small entities under the SBA definitions.

Mexico, Chile, and Peru are the major countries that export table grapes to the United States. According to 2015 U.S. Census Bureau Trade Data, shipments of table grapes imported into the United States from Mexico totaled 18,004,062 18-pound lugs, from Chile totaled 41,974,714 18-pound lugs, and from Peru totaled 4,829,483 18-pound lugs. According to USDA's Foreign Agricultural Service data, the total value of table grapes imported into the United States in 2015 was $1,220,169,475. It is estimated that the average importer received $9.0 million in revenue from the sale of table grapes in 2015. Based on this information, it may be concluded that the average table grape importer is not classified as a small entity.

This final rule revises § 925.160 of the administrative rules and regulations under the order to require handlers to report to the Committee any grapes donated to charitable organizations. It also revises § 925.304 of the order's administrative rules and regulations to allow grapes that do not meet minimum quality requirements, yet are still desirable for human consumption, to be donated to charitable organizations. These changes allow the industry to participate in the U.S. Food Waste Challenge while ensuring that donated grapes are only distributed as authorized. Authority for permitting Special Purchase Shipments is provided in § 925.54. The requirement for handlers to report this information to the Committee is provided in § 925.60 of the order.

The Committee's proposal to authorize donation of grapes to charitable organizations was unanimously recommended at a public meeting on November 5, 2013. The Committee presented the Food Donation Form CDGAC No. 8 at its meeting on October 30, 2014, and subsequently submitted it to AMS for further approval. There is no direct financial effect on producers or handlers. Authority for the change to the table grape import regulation is provided in section 8e of the Act.

The Committee believes this change is beneficial to the industry and to the recipients of this donated food product. Very little impact is expected because the change in the regulatory requirements on handlers is minimal. There is one new form added to track and ensure that grapes not meeting the minimum grade and size requirements are donated to a charitable organization and not used for resale. This change does not contain any assessment or funding implications. There is no change in financial costs.

Alternatives to the proposal, including making no changes at this time, were considered. However, the Committee believes it is beneficial to allow these grapes to be donated to charitable organizations to reduce, recover, and recycle edible food product in support of the U.S. Food Waste Challenge.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0189, Generic OMB Fruit Crops. However, as a result of this action, CDGAC Form No. 8 has been submitted to OMB for approval and temporarily assigned OMB No. 0581-0290.

This action imposes minimal additional reporting and recordkeeping burden on domestic handlers who elect to donate grapes to charitable organizations using the CDGAC Form No. 8. It is estimated that the annual reporting burden for the industry will increase by 2.34 hours. All 14 handlers are in support of using this form to document the delivery of grapes to charitable organizations.

As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

As noted in the initial regulatory flexibility analysis, USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this final rule. Further, public comments received concerning the proposal did not address the initial regulatory flexibility analysis.

Under section 8e, whenever certain specified commodities are regulated under a Federal marketing order, imports of that commodity must meet the same or comparable grade, size, quality, and maturity requirements as those in effect for the domestic commodity. Grapes are included under section 8e, and thus importers of table grapes are required to have such grapes inspected. A change that allows certain domestic table grapes to be donated to charitable organizations requires corresponding changes to the requirements for imported table grapes.

Importers already complete the Importer's Exempt Commodity Form (FV-6), which provides for certain authorized imported commodities to be diverted to alternative channels such as processing, animal feed, and charities. With this change, §§ 944.350(a)(1) and 944.503(d) and (e) are revised to allow for imported grapes to be donated for consumption by charitable organizations. This action does not change the format of the FV-6 form nor does it affect the burden. It is unlikely to impose additional reporting and recordkeeping burden on importers who elect to donate grapes to charitable organizations. Importers are not required to complete the CDGAC Form No. 8. CDGAC Form No. 8 is only intended to cover deliveries of domestically produced grapes to charitable organizations by domestic grape handlers.

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

The Committee's meetings were widely publicized throughout the California table grape production area. All interested persons were invited to attend both meetings and encouraged to participate in Committee deliberations. Like all Committee meetings, the November 5, 2013, and the October 30, 2014, meetings were public, and all entities, both large and small, were encouraged to express their views on this issue.

A proposed rule concerning this action was published in the Federal Register on October 1, 2015 (80 FR 59077). Copies of the rule were mailed or sent via email to all Committee members and grape handlers. The rule was made available through the internet by USDA and the Office of the Federal Register. A 60-day comment period ending November 30, 2015, was provided to allow interested persons to respond to the proposal.

Two comments were received during the comment period in favor of the proposal. One comment simply stated that the commenter liked the proposal. The other commenter was also in favor of the proposal and recommended that the donated grapes be “rechecked” by the receiving charitable organization to ensure edibility. Table grapes that do not meet minimum grade and size requirements can still be wholesome and safe to eat. The regulations contain safeguards to ensure that table grapes donated to charitable organizations are accepted by those organizations for their intended use (food distribution) through the use of the new CDGAC Form No. 8 (for domestic grapes) and Form FV-6 (for imported grapes). The Committee and USDA believe this change helps reduce food waste by providing an outlet for wholesome and edible table grapes. No comments were received on the proposed information collection.

Accordingly, no changes will be made to the rule as proposed, based on the comments received.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/rules-regulations/moa/small-businesses. Any questions about the compliance guide should be sent to Antoinette Carter at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

After consideration of all relevant matter presented, including the information and recommendation submitted by the Committee and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.

In accordance with section 8e of the Act, the United States Trade Representative has concurred with the issuance of this rule.

For the reasons set forth in the preamble, 7 CFR parts 925 and 944 are amended as follows:

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2014-03-14, Amendment 39-17752 (79 FR 9382, February 19, 2014) (“AD 2014-03-14”). AD 2014-03-14 applied to all Airbus Model A330-200 and -300 series airplanes, and Model A340-200, -300, -500, and -600 series airplanes. The NPRM published in the Federal Register on December 11, 2015 (80 FR 76875) (“the NPRM”). The NPRM was prompted by fuel system reviews conducted by the airplane manufacturer. The NPRM proposed to continue to require removing bulb-type maintenance lights; installing a drain mast on certain airplanes; and installing muffs on connecting bleed elements on certain airplanes. The NPRM also proposed to require, for certain Model A340-200 and -300 series airplanes, replacing certain insulation sleeves with new insulation sleeves. We are issuing this AD to prevent ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2014-0148, dated June 13, 2014 (referred to after this the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus Model A330-200 and -300 series airplanes, and Model A340-200, -300, -500, and -600 series airplanes. The MCAI states:

The additional work is replacing the insulation sleeves between FR83 and FR84 with new insulation sleeves. You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-6547.

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public.

Airbus has issued Service Bulletin A330-36-3038, Revision 01, dated May 11, 2015. The additional work specified in this service information is minimal and consists of modifying the routing of a harness. This additional work is not required for airplanes on which the actions previously required by paragraph (h) of AD 2014-03-14 have been done before the effective date of this AD. Paragraph (h) of this AD retains the requirements of paragraph (h) of AD 2014-03-14. We have revised paragraph (h)(1) of this AD to specify Airbus Service Bulletin A330-36-3038, Revision 01, dated May 11, 2015, as an appropriate source of service information.

We reviewed the available data and determined that air safety and the public interest require adopting this AD with the change described previously and minor editorial changes. We have determined that these changes:

• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM.

Airbus has issued the following service bulletins.

• Airbus Service Bulletin A330-33-3041, Revision 02, dated November 7, 2013, which describes procedures for removing bulb-type maintenance lights.

• Airbus Service Bulletin A330-36-3037, Revision 02, including Appendix 01, dated April 7, 2014, which describes procedures for modifying the bleed leak detection loop of the auxiliary power unit (APU).

• Airbus Service Bulletin A330-36-3038, Revision 01, dated May 11, 2015, which describes procedures for bleed leak detection loop modification of the APU.

• Airbus Service Bulletin A340-33-4026, Revision 02, dated November 7, 2013, which describes procedures for removing bulb-type maintenance lights.

• Airbus Service Bulletin A340-36-4033, Revision 02, including Appendix 01, dated May 19, 2014, which describes procedures for bleed leak detection loop modification of the APU.

• Airbus Service Bulletin A340-36-4035, including Appendix 01, dated September 18, 2012, which describes procedures for installing muffs on connecting bleed elements on certain airplanes.

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 43 Model A330 series airplanes of U.S. registry. There are no Model A340 airplanes registered in the U.S.

The actions required by AD 2014-03-14, and retained in this AD take about 21 work-hours per product, at an average labor rate of $85 per work-hour. Required parts cost about $5,219 per product. Based on these figures, the estimated cost of the actions that were required by AD 2014-03-14 is $7,004 per product.

We also estimate that it will take about 6 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts will cost about $279 per product. Based on these figures, we estimate the cost of this AD on U.S. operators to be $33,927, or $789 per product.

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.

We determined that 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 the 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:

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Dassault Aviation Model FALCON 7X airplanes. The NPRM published in the Federal Register on January 4, 2016 (81 FR 28) (“the NPRM”). The NPRM was prompted by reports of multiple cases of ram air turbine (RAT) blade damage. The NPRM proposed to require deployment of the RAT, replacement of the RAT placard with a new RAT placard, and re-identification of the RAT. We are issuing this AD to prevent blade damage to the RAT, which could prevent RAT deployment in flight during an emergency, possibly resulting in reduced control of the airplane.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2015-0076, dated May 6, 2015 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Dassault Aviation Model FALCON 7X airplanes. The MCAI states:

You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-7532.

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM 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 for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM.

We reviewed Dassault Service Bulletin 7X-289, dated January 21, 2015. The service information describes procedures for deployment of the RAT, replacement of the RAT placard with a new RAT placard, and re-identification of the RAT. 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 45 airplanes of U.S. registry.

We also estimate that it will take about 4 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts will cost about $121 per product. Based on these figures, we estimate the cost of this AD on U.S. operators to be $20,745, or $461 per product.

According to the manufacturer, some of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.

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.

We determined that 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 the 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 Black Lung Benefits Act (BLBA), 30 U.S.C. 901-944, provides for the payment of benefits to coal miners and certain of their dependent survivors on account of total disability or death due to coal workers' pneumoconiosis. 30 U.S.C. 901(a); Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 8 (1976). Benefits are paid either by an individual coal mine operator that employed the coal miner (or its insurance carrier), or the Black Lung Disability Trust Fund (Trust Fund). Dir., OWCP v. Bivens, 757 F.2d 781, 783 (6th Cir. 1985).

On April 29, 2015, the Department proposed revising the BLBA's implementing regulations to resolve several procedural issues that had arisen in claims administration and adjudication, and make other technical changes. 80 FR 23743-54 (Apr. 29, 2015) (NPRM). Each of these issues and the comments received in response to the proposed rule are fully addressed in the Section-By-Section Explanation below.

Congress granted the Secretary broad rulemaking authority to administer the BLBA: “The Secretary of Labor [is] authorized to issue such regulations as [he] deems appropriate to carry out the provisions of this subchapter.” 30 U.S.C. 936(a). See, e.g., Elm Grove Coal Co. v. Dir., OWCP, 480 F.3d 278, 293 (4th Cir. 2007) (“[T]he Secretary has been vested with broad authority to implement the mandate of the Black Lung Act.”); Caney Creek Coal Co. v. Satterfield, 150 F.3d 568, 572 (6th Cir. 1998) (describing 30 U.S.C. 936(a) as conferring “a broad grant of congressional authority” to promulgate regulations); Labelle Processing Co. v. Swarrow, 72 F.3d 308, 312 (3d Cir. 1995) (“Congress granted the Secretary of Labor broad authority to promulgate regulations under the BLBA.”); Harman Mining Co. v. Dir., OWCP, 826 F.2d 1388, 1390 (4th Cir. 1987) (same); see also Dir., OWCP v. Mangifest, 826 F.2d 1318, 1330 n.21 (3d Cir. 1987) (regulation was an appropriate exercise of the Secretary's general authority where not precluded by specific statutory section). Congress further emphasized the Secretary's important role in the BLBA's administration by including many other grants of regulatory authority throughout the statute. See 30 U.S.C. 902(f)(1)(D), 921(b), 923(b), 932(a), 932(h), 936(c), and 942. Two of these supplementary grants of regulatory authority, sections 923(b) and 932(a), are particularly important to this rulemaking.

Section 923(b), which incorporates section 205(a) of the Social Security Act, 30 U.S.C. 923(b) (incorporating 42 U.S.C. 405(a)), gives the Department wide latitude in regulating evidentiary matters in claims adjudications. Specifically, section 205(a) grants the Secretary authority to “adopt reasonable and proper rules and regulations to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same in order to establish the right to benefits hereunder.” Id. As explained in the NPRM, 80 FR 23746, section 205 has been interpreted as conferring “exceptionally broad” power to regulate. See Heckler v. Campbell, 461 U.S. 458, 466 (1983), quoting Schweiker v. Gray Panthers, 453 U.S. 34, 43 (1981).

Section 932(a), 30 U.S.C. 932(a), grants similarly strong regulatory authority to the Secretary. This section incorporates various provisions from the Longshore and Harbor Workers' Compensation Act (Longshore Act), 33 U.S.C. 901-950, but further authorizes the Secretary to “prescribe in the Federal Register such additional provisions [] as he deems necessary” and specifies that the incorporated Longshore Act sections apply “except as otherwise provided . . . by regulations of the Secretary.” 30 U.S.C. 932(a); see Dir., OWCP v. Nat'l Mines Corp., 554 F.2d 1267, 1273-74 (4th Cir. 1977) (holding that Congress empowered the Secretary to depart from specific requirements of the Longshore Act).

One of the incorporated Longshore Act provisions, section 23(a), also provides important statutory authority for this rulemaking. 33 U.S.C. 923(a), as incorporated by 30 U.S.C. 932(a). This section relieves the Department from traditional rules of procedure or evidence in claims determinations and plainly elevates truth seeking over litigation gamesmanship: “the [adjudication officer] shall not be bound by common law or statutory rules of evidence or by technical or formal rules of procedure, except as provided by this chapter; but may make such investigation or inquiry or conduct such hearing in such manner as to best ascertain the rights of the parties.”Id.

The Department received 18 comments, some joined by multiple individuals or entities, in response to the NPRM. Commenters included miners, benefits claimants, their representatives, a labor union, a coal mine company, an insurance company, industry and insurance trade associations, and one member of Congress. Five of the comments expressed general concerns about the black lung program and the difficulties miners face in obtaining benefits. The remaining comments addressed the proposed rules more specifically and are discussed below in the Section-by-Section Explanation. The Department appreciates these comments and has made several revisions to the final rule in response.

The Department received no comments on the proposed revisions replacing the word “shall” with the word “must” or other appropriate plain-language phrase throughout the amended regulatory sections. See generally 80 FR 23743-44. Accordingly, the Department has retained those revisions in the final rule.

(a) Section 725.310 implements section 22 of the Longshore Act, 33 U.S.C. 922, as incorporated into the BLBA by 30 U.S.C. 932(a). Section 22 generally allows for the modification of claim decisions based on a mistake of fact or a change in conditions up to one year after the last payment of benefits or denial of a claim.

The Department proposed adding a new paragraph (e) to this regulation to ensure that responsible operators (and their insurance carriers) fully discharge their payment obligations while pursuing modification of a benefits award. 80 FR 23744-45, 23751. In the absence of a Benefits Review Board or court-ordered stay of payments, the proposed rule required that an operator's request to modify an effective award be denied unless the operator proved that it had complied with all of its payment obligations under that award and any other currently effective award (such as a medical benefits award) in the claim. The Department noted that an “effective” award is generally an uncontested award entered by a district director or any award entered by an administrative law judge or higher tribunal. 80 FR 23744; 20 CFR 725.502(a). The Department proposed the rule both to ensure that claimants are fully compensated and to protect the Trust Fund, which must pay effective awards when an operator fails to do so. 80 FR 23744-45.

(b) The Department received several comments addressing proposed paragraph (e). Four commenters expressed support for the proposal. Noting that modification proceedings can add years to the claims process and citing examples, one commenter praised this rule as pragmatic because it allows operators with legitimate defenses to pursue modification while reducing the incentive for operators to improperly use modification as a means to delay payment of benefits. Another commenter praised the proposal as clearly consistent with the Act and agreed with the Department's position that the Trust Fund should not be burdened with paying benefits on behalf of operators during the modification period. Two additional commenters expressed general support for the rule.

Six commenters opposed the rule, arguing either that the Department should withdraw the rule completely or that it should be revised. Several of these commenters argue that the proposed rule should be withdrawn because it is unauthorized by law, unfair, and unnecessary. These commenters also argue that the rule will effectively deprive operators of the opportunity to challenge medical expenses and attorneys' fees.

The Department has fully considered the comments received and determined that the rule should not be withdrawn. The Department has, however, revised the final rule to address the commenters' concerns regarding medical expenses and attorneys' fees.

(c) As explained in the NPRM, 80 FR 23744-45, Congress established the Trust Fund in 1977 to serve as a secondary payor when there is no operator that may be held liable or when the liable operator defaults on its payment obligations. Congress envisioned the Trust Fund as a payor of last resort, and intended to “ensure that individual coal operators rather than the trust fund bear the liability for claims arising out of such operators' mines to the maximum extent feasible.” S. Rep. No. 95-209 at 9, reprinted in Committee on Education and Labor, House of Representatives, 96th Cong., Black Lung Benefits Act and Black Lung Benefits Revenue Act of 1977 at 612 (Comm. Print) (1979).

Yet operators were not always meeting their payment obligations under effective benefit awards, relying instead on the Trust Fund to pay benefits while they appealed or sought modification. The Department attempted to resolve any confusion on this issue when it promulgated extensive revisions to the black lung program regulations in 2000. 65 FR 80009-11 (Dec. 20, 2000). In that rulemaking, the Department revised § 725.502 with the specific intent of clarifying when a benefits award was “effective,” and thus payable by the liable operator. 62 FR 3366 (Jan. 22, 1997) (with revisions to § 725.502, “[t]he Department hopes to increase operator compliance with effective awards.”); 65 FR 80009 (Dec. 20, 2000) (“The most important changes [to § 725.502] were designed to make clear to responsible operators their obligations under the terms of an effective award of benefits even though the claim might still be in litigation.”). The Department noted that operators, contrary to Congressional intent, routinely used the Trust Fund as a surrogate to “reduce the risk of losing interim payments in the event the award is reversed.” 64 FR 55000 (Oct. 8, 1999). The Department clearly expressed its position that operators, and not the Trust Fund, are required to pay benefits pursuant to an effective award notwithstanding the pendency of a modification petition. 64 FR 55000-01.

The Department's efforts in 2000, however, have not remedied the problem. Operators often do not meet their legal obligation to pay benefits while challenging effective awards, whether by appeal to the Benefits Review Board or appropriate court, or by seeking modification. Cases like those cited in the NPRM—including Crowe ex rel. Crowe v. Zeigler Coal Co., 646 F.3d 435, 445 (7th Cir. 2011), and Hudson v. Pine Ridge Coal Co., LLC, No. 2:11-00248, 2012 WL 386736, *5 (S.D. W.Va. Feb. 6, 2012)—continue to arise. See, e.g., Bull Creek Coal Corp. v. Dir., OWCP, 6th Cir. No. 14-3573, operator's appeal dismissed Nov. 6, 2014 (in post-2000 claim, operator sought modification after appealing effective benefits award to the court, but later moved to dismiss its appeal; modification petition remains pending and the Department's records indicate that the operator has not paid pursuant to the award); Dalton v. Dir., OWCP, 738 F.3d 779 (7th Cir. 2013) (in post-2000 claim, Department's records indicate operator delayed Trust Fund reimbursement for approximately ten years while pursuing appeals of initial awards and a later modification petition). Indeed, the Department has identified more than nine hundred claims in which the Trust Fund has paid effective benefits awards in the operator's stead since October 1, 2010. And, as explained in the NPRM, the existing enforcement mechanisms are difficult to use in these circumstances. 80 FR 23744-45. Thus, the Trust Fund is routinely forced to pay interim benefits to entitled claimants and bear the risk that the benefits award was in error, contrary to Congress' intent. At the time of the 2000 rulemaking, the Trust Fund was indebted to the U.S. Treasury in the amount of $5.487 billion. As of the end of fiscal year 2012 and after a restructuring, which included a one-time non-refundable allocation of $6.497 billion to the Fund, the Trust Fund's debt remained over $6 billion. See Emergency Economic Stabilization Act of 2008, Public Law 110-343, section 113 (Oct. 3, 2008); OWCP Annual Report to Congress for FY 2012 at 63.

Thus, the rule addresses a longstanding problem; it is not, as some commenters suggest, simply a reaction to the concerns Judge Hamilton expressed in his Crowe concurring opinion over this type of operator misconduct. The rule is intended to curb an unlawful practice. It will prevent operators from indefinitely delaying payments to claimants or reimbursement of the Trust Fund for payments made on the operator's behalf. As a result, the rule will prevent operators from taking advantage of the safeguards built into the Act to protect claimants, mainly the payment of benefits from the Trust Fund when the liable operator fails to pay. The Department has a fiduciary duty to protect the Trust Fund from such misconduct. 26 U.S.C. 9501(a)(2); see also Marfork Coal Co. v. Weis, 251 F. App'x 229, 233 (4th Cir. 2007) (“The OWCP Director, who acts as trustee for the Black Lung Benefits Fund, is responsible for conserving its assets.”); Boggs v. Falcon Coal Co., 17 Black Lung Rep. 1-62, 1-65 (Ben. Rev. Bd. 1992) (noting that the Director is a trustee of the Trust Fund charged with a duty to protect its assets); Truitt v. N. Am. Coal Corp., 2 Black Lung Rep. 1-199, 1-202 (Ben. Rev. Bd. 1979) (same).

(d) Several commenters argue that no language in either the text or legislative history of Longshore Act section 22 authorizes this proposed rule. While section 22 does not contain explicit language contemplating this rule, other sections of the Longshore Act require employers to pay benefits under an effective award and therefore require payment of compensation due even while modification proceedings are pending. See, e.g., 33 U.S.C. 918, 921(a) (requiring payment of benefits pursuant to an award regardless of whether the award is final unless the order is stayed by an appellate tribunal); Williams v. Jones, 11 F.3d 247, 259 (1st Cir. 1993) (holding that employers must continue to pay pursuant to an effective award unless they are able to prove that doing so would result in irreparable injury). It is common practice for Longshore employers to comply with their obligations to pay compensation pursuant to an effective award while pursuing modification. There simply is no secondary payor—like the Trust Fund in black lung claims—available to serve as an alternative source of compensation payments in every case in which an employer does not meet its legal obligations, so there is no need for the Longshore Act to address this issue explicitly. Thus, the absence of any explicit language in section 22 mandating such compliance does not make the black lung rule inconsistent with Longshore Act practice.

This scenario also demonstrates why Congress incorporated the Longshore Act provisions into the BLBA with the qualification that the Department has authority to promulgate rules tailoring the incorporated provisions to the black lung program's specific needs. As discussed above (see Section II, supra), the Secretary's broad rulemaking authority under the BLBA specifically includes the “discretion to deviate from the LHWCA procedures and to prescribe `such additional provisions, not inconsistent with those specifically excluded by this subsection, as [the Department] deems necessary.' ” Bethenergy Mines Inc. v. Dir., OWCP, 854 F.2d 632, 634-35 (3d Cir. 1988) (quoting 30 U.S.C. 932(a)). The existence of the Trust Fund creates a need for a specific rule in the black lung program. Because the Department is authorized by statute to alter the procedures for modification, this rule is well within the Department's regulatory authority, even if section 22 does not explicitly require operators to demonstrate compliance with outstanding effective orders as a precondition to modification.

These same commenters also argue that the proposed regulation violates the Black Lung Benefits Revenue Act of 1977, which created the Trust Fund and specifies the circumstances under which it may pay benefits. The Revenue Act, codified at 26 U.S.C. 9501(d), authorizes the Trust Fund to pay benefits if the responsible operator either has not commenced payment within 30 days of an initial determination of eligibility, or has not made a payment within 30 days of its due date. 26 U.S.C. 9501(d). By regulation, the Department has provided that such payments by the Trust Fund are mandatory. See 20 CFR 725.420(c); 725.522. The commenters reason that because that statute authorizes (and the regulations compel) the Trust Fund to pay benefits to an entitled claimant when a liable operator fails to pay, the statute necessarily endorses the operator's refusal to pay. The statute contains no such endorsement. In fact, the statutory and regulatory enforcement provisions demonstrate that when Congress created the Trust Fund, it did not suspend operators' obligations to pay benefits once an effective or final order is issued. See 33 U.S.C. 918(a), incorporated by 30 U.S.C. 932(a) and implemented by 20 CFR 725.605 (establishing procedures for enforcement of effective awards even if those awards are not final); 33 U.S.C. 921(d), incorporated by 30 U.S.C. 932(a) and implemented by 20 CFR 725.604 (allowing for enforcement of final awards of benefits in federal court); Hudson v. Pine Ridge Coal Co., LLC, No. 2:11-00248, 2012 WL 386736, at *5 (S.D. W.Va. Feb. 6, 2012) (enforcing BLBA compensation order notwithstanding pendency of operator's modification petition). The comment provides no support for its assertion that Congress, in effect, approves of employers ignoring their BLBA payment obligations. See also 65 FR at 80011 (Dec. 20, 2000) (in revising § 725.502, rejecting similar comment and concluding that Congress did not intend the Trust Fund “to absorb all operators' liabilities as a matter of course until the conclusion of litigation in every approved claim”).

(e) Several commenters allege that the proposed rule effectively denies the modification remedy to operators by eliminating their financial incentive to pursue modification. They contend that even if operators are successful on modification, they will be unable to recoup the benefits that were paid pursuant to previously effective awards. See 20 CFR 725.540(a) (allowing for recoupment of overpaid benefits). The Department does not believe that the commenters' perceived problems with the system for recovering overpayments justify withdrawing this rule.

The commenters allude to substantive and procedural reasons that operators may struggle to recover overpayments. Substantively, overpayments may not be recovered when the claimant is without fault in receiving the overpayment and if recovery would defeat the purpose of the Act or be against equity and good conscience. 20 CFR 725.542. This is true whether the overpayment is owed to an operator or to the Trust Fund. See 20 CFR 725.547. The initiation of payments prior to final adjudication is a characteristic of workers' compensation programs generally. See, e.g., Doucette v. Hallsmith/Sysco Food Servs., Inc., 10 A.3d 692, 694 (Me. 2010) (recognizing express provision in Maine workers' compensation law that requires payment of benefits pending appeal and holding that court is not empowered to stay such payments); Coley v. Camden Assoc., Inc., 702 A.2d 1180, 1184 (Conn. 1997) (Connecticut's workers' compensation law requires employers or insurers to pay benefits to claimants during the pendency of appeal); Garcia v. McCord Gasket Corp., 534 N.W.2d 473, 478 (Mich. 1995) (affirming dismissal of employer's appeal for failure to pay benefits pursuant to effective, but not final, order as required by Michigan's workers' compensation law). Although this practice carries the risk that some claimants will receive compensation to which they were not entitled, that risk has been deemed an acceptable part of the workers' compensation compromise. Under the Act and regulations, the risk of an unrecoverable overpayment exists in every case where benefits are awarded, but the legislative history of the Act demonstrates Congress intended that operators, not the Trust Fund, should bear that risk. See, e.g., Old Ben Coal Co. v. Luker, 826 F.2d 688, 693 (7th Cir. 1987); Nowlin v. Eastern Assoc. Coal Corp., 331 F. Supp. 2d 465, 476 (N.D. W.Va. 2004) (“[T]he public is served by placing the risk of non-collection of overpayments on the coal mine operator rather than on the Trust Fund”).

Procedurally, these commenters argue that operators encounter difficulties in obtaining overpayment orders from the Department, and then in enforcing them against claimants because the BLBA does not grant jurisdiction to any court for this purpose. Overpayment proceedings are governed by §§ 725.547(b) and 725.548. 20 CFR 725.547(b), 725.548. Section 725.547(b) specifies that “[n]o operator or carrier may recover, or make an adjustment of, an overpayment without prior application to and approval” by the Department. Section 725.548(a) authorizes district directors to issue appropriate orders to protect the rights of the parties, and § 725.548(b) provides that disputes will be resolved through the same adjudication procedures that govern claims. The Department understands its essential role in processing operator overpayment requests and is committed to cooperating with the parties to ensure prompt resolution. To that end, the Department will review its procedures for handling operator overpayment requests and will ensure that all personnel are properly trained in their handling as part of this rule's implementation.

Operator enforcement of overpayment orders, however, is an issue that is outside the scope of this rulemaking. Because this rule does not impose any new obligations on operators (see 80 FR 23744 (explaining that operators are legally required to pay pursuant to effective awards notwithstanding the pendency of a modification petition)), it also does not impose a new need for an enforcement remedy. These concerns represent a general complaint about the law as it currently stands and therefore should be directed to Congress, not the Department. The Department may not create a new cause of action in the courts. See Kontrick v. Ryan, 540 U.S. 443, 452 (2004) (“Only Congress may determine a lower federal court's subject-matter jurisdiction.”); Castaneda v. Immigration & Naturalization Serv., 23 F.3d 1576, 1579 n.2 (10th Cir. 1994) (“[A]dministrative agencies cannot by promulgation or interpretation of their own regulations either augment or nullify the jurisdiction of the federal courts as delimited by Congress.”)

In sum, this rule does not impose any payment obligations on operators that do not exist currently, and thus should have no impact on operators' incentive to pursue modification when they believe it is warranted. See, e.g., Crowe, 646 F.3d at 445 (Hamilton, J., concurring) (noting that a pending modification request does not suspend an operator's obligation to pay pursuant to an effective award); Hudson, 2012 WL 386736, at *5 (same). Nor does this rule remove the primary incentive for operators to pursue modification: obtaining an order relieving them from the obligation to pay any additional benefits.

(f) The commenters contend that this rule is unfair because claimants and operators are treated differently. Specifically, operators must demonstrate that they have complied with their payment obligations before seeking modification of an award, but claimants are not similarly required to repay any overpaid benefits before seeking modification of a denial.

An overpayment could occur in any case where an adjudicator awards benefits to the claimant—thereby entitling the claimant to interim benefit payments pending final adjudication—and a higher-level adjudicator or appellate body denies the claim. See 20 CFR 725.522(b). Significantly, a decision reversing an award to a denial does not compel a claimant to repay previously paid benefits because the overpaid claimant has a statutory right to seek waiver of recovery of the overpayment. See 42 U.S.C. 404(b), as incorporated by 30 U.S.C. 923(b); see also 20 CFR 725.541; 725.542; 725.547. These provisions allow each overpaid claimant to argue that he or she need not repay the benefits because he or she was without fault in incurring the overpayment, and repayment would either defeat the purpose of the Act or be against equity and good conscience.

Claimants only have one year from the date of a denial of benefits to request modification. Yet waiver determinations commonly take more than that one year to complete. They are factually involved, requiring compilation of a completely different record addressing the claimant's role in creating the overpayment and the claimant's current financial position. As in a benefits claim proceeding, a district director's waiver decision is not binding if the claimant requests an administrative law judge hearing, and no repayment by the claimant is due until after the administrative law judge considers the waiver request. See 20 CFR 725.419(a), (d); 20 CFR 725.548(b). Thus, requiring claimants to repay overpayments before seeking modification could put them in the untenable position of having to choose between two statutory rights: (1) Repaying overpaid benefits within the one-year time limit for seeking modification and foregoing their right to seek a repayment waiver; or (2) seeking a repayment waiver and foregoing the right to seek modification.

This situation is not comparable to an operator's refusal to pay benefits pursuant to an effective award. Under an effective award, an operator is legally required, by both the BLBA and its implementing regulations, to pay benefits without any further action. 33 U.S.C. 921(b)(3) and (c), as incorporated by 30 U.S.C. 932(a); 20 CFR 725.502; Crowe, 646 F.3d at 445 (operator is entitled to seek modification, but “not legally entitled simply to ignore the final order of payment.”); Vincent v. Consolidated Operating Co., 17 F.3d 782, 785-86 (5th Cir. 1994) (enforcing award under the Longshore Act despite employer's modification request); Williams v. Jones, 11 F.3d 247, 259 (1st Cir. 1993) (same); Hudson, 2012 WL 386736, at *5 (denying motion to dismiss enforcement petition because of pendency of modification request). Section 725.310(e) simply requires operators to comply with their legal obligations before accessing the modification process. Moreover, the one-year period during which an operator may seek modification is constantly shifting because it runs from the date of last payment of benefits, and benefits are paid monthly. Thus, an operator might be in a position to seek modification many years after the initial award was entered.

(g) Although the Department has determined that proposed § 725.310(e) should be promulgated, the final rule contains several revisions based on comments received.

Several commenters contend that the rule would require an operator who wants to challenge a particular medical expense or an attorney's fee award to delay seeking modification until ancillary litigation regarding the disputed amount has concluded. The comment reveals an ambiguity in the proposed rule that the Department has clarified in the final rule by more specifically describing in § 725.310(e)(1) which awards an operator must pay before pursuing modification.

Miners who meet the BLBA's entitlement criteria are entitled to medical benefits for treatments necessitated by their pneumoconiosis and resultant disability. 20 CFR 725.701(a). A typical award of benefits will order the responsible operator to pay medical benefits generally, but will not contain findings as to whether any specific medical expense is compensable under the Act and regulations. The regulations recognize several valid reasons why a particular bill may be disputed, including that the medical service or supply was not for a pulmonary disorder or was unnecessary. 20 CFR 725.701(e). Operators have the right to dispute their liability for individual medical bills or charges and to take an unresolved dispute over the compensability of a medical bill to the Office of Administrative Law Judges for resolution. See 20 CFR 725.708. Any employer contest of an individual medical bill that goes to an administrative law judge results either in an order requiring payment or an order relieving the employer of the obligation to pay. See 20 CFR 725.701.

Thus, it is not uncommon for there to be multiple effective orders compelling an employer to pay medical benefits in a given case. While proposed § 725.310(e)(1) requires payment of only “currently effective” awards as defined by § 725.502(a), it does not identify whether a general award of medical benefits or a later award addressing specific medical charges triggers the operator's obligation to pay before being allowed to pursue modification. The Department has modified the final rule to clarify that only effective orders directing payment of specific medical bills must be paid before an operator may pursue modification. Such an order may arise in two ways. First, an effective order may arise if an operator does not timely contest specific medical bills brought to its attention by a district director. See 20 CFR 725.502(a)(2). Second, an effective order directing the payment of specific medical bills may be entered by an administrative law judge after a hearing on the compensability of those medical charges. See id. This revision ensures that operators will maintain the right to contest the compensability of each individual medical expense before an administrative law judge without burdening the right to seek modification of the underlying benefits award while review is underway. The final rule also protects claimants and the Trust Fund by requiring prompt payment or reimbursement of medical expenses that have been adjudicated to be compensable.

The commenters similarly contend that the proposed rule would require employers to delay seeking modification until ancillary litigation regarding attorneys' fees is concluded. The proposed rule requires that attorneys' fees be paid before an employer is allowed to pursue modification provided two conditions are met: The fee must be “approved,” and the underlying benefits award must be final (i.e., the time to appeal the benefits award has expired or appellate review has concluded). The proposed rule does not define the term “approved,” and the Department recognizes that the term may be susceptible to multiple interpretations.

In proposing § 725.310(e)(1), the Department intended to require operators to pay only those amounts that are otherwise due and payable as a precondition to seeking modification. With regard to attorney fees, the case law construing section 28 of the Longshore Act, the source of the BLBA's attorneys' fee provision (see 33 U.S.C. 928, as incorporated by 30 U.S.C. 932(a)), is clear that attorneys' fee awards are not due and payable until the underlying benefit award is final, see Thompson v. Potashnick Constr. Co., 812 F.2d 574, 577 (9th Cir. 1987), and the fee award is final as well. See Johnson v. Dir., OWCP, 183 F.3d 1169, 1171 (9th Cir. 1999). See also 20 CFR 725.367(b) (requiring payment of attorney fee only “after the award of benefits becomes final”). Thus, the Department has amended § 725.310(e) to clarify that an employer must pay attorney fee awards prior to modification only if both the underlying benefit award and the fee award are final as defined by 20 CFR 725.419(d) (district director decision), 725.479(a) (administrative law judge decision) or 802.406 (Benefits Review Board decision).

Two commenters object to proposed § 725.310(e)(1)(ii), which requires employers to reimburse the Trust Fund for benefits paid to claimants “with such penalties and interest as are appropriate” prior to seeking modification. The commenters assert that the term “penalties” is ambiguous and confusing and that its meaning should be clarified. They note that the Department has proposed amending other regulations (§§ 725.601 and 725.607), in part to make clear that additional compensation is not a “penalty.” The commenters also suggest that the modifying clause, “as are appropriate,” could be read as a grant of discretion to the adjudicator to fashion extra-regulatory penalties.

The commenters are correct that the term “penalties” is not intended to refer to the additional compensation that is payable to claimants under § 725.607, and the Department did not intend to authorize adjudicators to assess new penalties against operators. The proposed rule refers to certain statutory and regulatory civil money penalties that are payable to the Trust Fund. These penalties may be imposed for failure to secure the payment of benefits, i.e., an employer's failure either to secure commercial insurance or receive permission to self-insure its benefit liability (30 U.S.C. 933(d); 20 CFR 726.300) and for an employer's failure to file a required report (30 U.S.C. 942(b); 20 CFR 725.621(d)). After considering the commenters' objections, the Department has determined that the language requiring operators to pay civil money penalties as a condition to seeking modification of an award of benefits is unnecessary. Therefore, the Department has deleted the words “penalties” and “as are appropriate” from § 725.310(e) in the final rule.

The Department has revised § 725.310(e) in the final rule to reflect these comments and to simplify the rule. Paragraph (e)(1) now defines “effective” and “final” orders by reference to the appropriate regulations. Paragraph (e)(2) retains the general requirement that operators must meet their payment obligations before pursuing modification, which appeared in proposed paragraph (e)(1). The Department has removed the phrase “currently effective” in describing orders that must be paid because it is redundant; orders are no longer “effective” when they are vacated by a higher tribunal or superseded by an effective order on modification. See 20 CFR 725.502(a)(1). Revised paragraphs (e)(2)(i)-(v) describe the particular obligations an operator must prove it has satisfied and implements the revisions described in detail above regarding orders awarding medical benefits or attorneys' fees, and striking the words “penalties. . . . as are appropriate” from obligations an operator must satisfy.

(h) No other significant comments were received concerning this section, and the Department has promulgated the remainder of the regulation as proposed.

(a) The Department proposed a new provision that would require the parties to exchange all medical information developed in connection with a claim. 80 FR 23745-47, 23752. Currently, parties may develop medical information (subject to certain limits on examinations of the miner) in excess of the evidentiary limitations set out in § 725.414, and then select from that information those pieces they wish to submit into evidence. Medical information developed but not submitted into evidence generally remains in the sole custody of the party who developed it unless an opposing party is able to obtain the information through formal discovery.

The Department's proposed rule would change this status quo by requiring parties to share medical information developed in connection with a claim. The Department articulated several reasons for the change. See 80 FR 23746-47. First, experience has demonstrated that miners may be harmed if they do not have access to all information about their health, and the primary purpose of the Mine Safety and Health Act is to protect the health and safety of miners. To illustrate the potential for adverse impact on the miner's health, the Department described the proceedings in miner Gary Fox's claims for benefits, where the coal-mine operator withheld medical information documenting complicated pneumoconiosis from both the miner and some of its own medical experts. Second, by requiring an exchange of medical information, the rule protects parties who do not have legal representation who can assist in the formal discovery process. Finally, allowing parties fuller access to medical information may lead to better, more accurate decisions on claims—a goal that is consistent with Congressional intent.

In addition to establishing the disclosure requirement and time frames within which parties must exchange medical information, the proposed rule set forth a non-exclusive list of sanctions an adjudication officer may impose on the party or the party's attorney for failure to disclose medical information in accordance with the rule. 80 FR 23752. But the rule provided that sanctions may be imposed only after giving the party an opportunity to demonstrate “good cause” for non-disclosure, and the sanctions imposed must be “appropriate to the circumstances.” Id. The proposed rule also required the adjudication officer to consider whether sanctions should be mitigated because the party was not represented by an attorney when the non-disclosure occurred, or the non-disclosure was attributable solely to the party's attorney.

(b) The Department received several comments on the proposed rule. The comments ranged from supporting the proposed rule's promulgation without change to advocating the rule's withdrawal. Those commenters supporting the rule agreed with the Department that the rule is a fair and reasonable method of protecting the health and safety of miners, noting variously that it was “critical” and “ethical” for miners to have access to their health records. Others described experiences in representing claimants where the operator had skewed the medical evidence by withholding various pieces of medical information from their own experts or only partially disclosing a physician's opinion. A Member of Congress praised the Department's efforts, noting that the proposed rule could prevent harm to a miner who might otherwise be unaware of medical problems he or she may suffer and would level the playing field in claims adjudications, especially for unrepresented miners who would have difficulty navigating the discovery process.

Those commenters opposed to proposed § 725.413 state that the Department does not have statutory authority to promulgate the rule, or to impose sanctions, or both. They contend that neither the incorporated Social Security Act and Longshore Act provisions (see Section II, supra) granting the Secretary regulatory authority nor the Administrative Procedure Act (APA) are sufficient to sustain promulgation of this regulation. They also argue that the rule is unnecessary because only one attorney engaged in the conduct the rule addresses. They further contend that the Department has not demonstrated a quantifiable positive impact on miners' health that would result from the rule. If the Department promulgates a medical information disclosure rule, several commenters ask for clarification of specific portions of the rule.

After giving full consideration to the comments, the Department believes the rule is important to protecting the health of miners and is promulgating it with certain revisions described below. The following discussion addresses all of the significant comments the Department received and explains each revision in the final rule.

(c) Some commenters ask the Department to withdraw the rule, arguing that the Department lacks statutory authority to promulgate it. The Department disagrees with this comment. As discussed in detail above (see Section II, supra), Congress granted the Secretary broad rulemaking authority generally, and in governing evidentiary matters specifically. See 30 U.S.C. 923(b) (incorporating 42 U.S.C. 405(a)); 936(a). The statute also plainly authorizes the Department to depart from traditional procedural and evidentiary rules (such as those governing discovery) in order to best ascertain the rights of the parties in claims adjudications. 33 U.S.C. 923(a), as incorporated by 30 U.S.C. 932(a).

The objecting commenters dispute the Department's reliance on these statutory authorities. Without acknowledging the Secretary's general rulemaking authority under 30 U.S.C. 936(a), they contend that neither the incorporated Longshore Act nor the incorporated Social Security Act provisions support promulgation of § 725.413. First, these commenters assert that the Department's reliance on Longshore Act section 23(a) is hypocritical because proposed § 725.413 is itself a technical rule of procedure. While § 725.413 is undoubtedly procedural, it will relieve the parties from the burden of complex discovery rules and will simplify claim proceedings and make them fairer, especially for those parties not represented by counsel. The rule is thus fully consistent with section 23(a)'s overarching command to “best ascertain the rights of the parties.”

Next, the same commenters state that the Department cannot rely on Social Security Act section 205(a), which they claim has no applicability to Part C BLBA claim proceedings (i.e., claims filed after 1973 and administered by the Department) because it is located in Part B of the Act, and provides no authority for importing Social Security Administration procedures into Part C claim adjudications. The commenters are simply mistaken on their first point and misconstrue the Department's action on their second. The fact that the Social Security Act incorporation appears in Part B of the Act does not preclude the Secretary from basing regulations for Part C claims on that authority. 30 U.S.C. 940 (providing that “amendments made by the Black Lung Benefits Act of 1972,” which included the incorporation of Social Security Act section 205(a), “shall, to the extent appropriate, also apply to this part [C].”). Indeed, both the District of Columbia and Fourth Circuit Courts of Appeals have upheld the Department's procedural regulations governing Part C claims by relying at least in part on this statutory authority. See Nat'l Min. Ass'n. v. Dep't. of Labor, 292 F.3d 849, 873-7 (D.C. Cir. 2002) (holding that section 205(a) and 5 U.S.C. 556(d)—which allows agencies to exclude “unduly repetitious evidence” as “a matter of policy”—constituted sufficient authority for the regulatory evidence limitations at 20 CFR 725.414, which are applicable to Part C claims); Elm Grove Coal Co. v. Dir., OWCP, 480 F.3d 278, 293 (4th Cir. 2007) (holding in Part C claim that incorporation of section 205(a), Administrative Procedure Act section 556(d), and grant of general rulemaking authority in 30 U.S.C. 936 authorize the Secretary “to adopt reasonable regulations on the nature and extent of the proofs and evidence in order to establish rights to benefits under the Act”). Moreover, § 725.413 does not import Social Security Administration procedures but instead provides a new rule applicable to Part C claims.

Promulgating a procedural rule requiring parties to exchange medical information developed in connection with a claim—a rule that governs proceedings before the agency, is party-neutral, protects a miner's health, and assists unrepresented parties—falls well within these statutory authorities.

(d) Apart from requiring the exchange of medical information, several commenters contend that the Department lacks statutory authority to promulgate regulations permitting the imposition of sanctions on parties or their attorneys who fail to properly disclose medical information. In support, they assert that: The Administrative Procedure Act (APA), 5 U.S.C. 501 et seq., and section 558(b) in particular, 5 U.S.C. 558(b), prohibit an agency from imposing sanctions; only courts established under Article III of the Constitution (i.e., federal district and appellate courts) may impose sanctions of fines and imprisonment; and neither the APA nor the BLBA authorizes sanctioning of attorneys in any event.

To the extent these commenters base their objections on the APA, their comments misapprehend how the APA's provisions interface with the BLBA. By statute, the APA does not apply to BLBA adjudications except as “otherwise provided” in the Mine Safety and Health Act. 30 U.S.C. 956 (“Except as otherwise provided in this chapter, the provisions of sections 551 to 559 and sections 701 to 706 of Title 5 shall not apply to the making of any order, notice, or decision made pursuant to this chapter[.]”). The BLBA otherwise provides for application of the APA provisions governing hearings—specifically, 5 U.S.C. 554 (which, in turn, refers to 5 U.S.C. 556)—by incorporating Longshore Act section 19(d). 33 U.S.C. 919(d), as incorporated by 30 U.S.C. 932(a). But as explained above (see Section II, supra), that incorporation is subject to an important limitation: The Longshore Act provisions are incorporated “except as otherwise provided . . . by regulations of the Secretary.” 30 U.S.C. 932(a). Thus, “under the express language of the BLBA, the APA does not trump [a black lung program] regulation.” Amax Coal Co. v. Dir., OWCP, 312 F.3d 882, 893 (7th Cir. 2002); accord Midland Coal Co. v. Dir., OWCP, 149 F.3d 558, 563 (7th Cir. 1998) (overruled on other grounds by Saban v. U.S. Dep't of Labor, 509 F.3d 376 (7th Cir. 2007)).

Unlike the APA hearing provisions, neither the BLBA nor the Department's implementing regulations calls for application of section 5 U.S.C. 558, the APA section the commenters rely upon most heavily to challenge the Department's authority to impose sanctions under § 725.413. Section 558(b) provides that “[a] sanction may not be imposed . . . except within jurisdiction delegated to the agency and as authorized by law.” 5 U.S.C. 558(b). The Mine Safety and Health Act specifically excludes this APA section from incorporation unless “otherwise provided,” and the BLBA does not “otherwise provide” for its application. 30 U.S.C. 956. Nor is this provision incorporated through the circuitous Longshore Act route that brings the APA's hearing-related provisions into the BLBA. Thus, the commenters' reliance on section 558 is misplaced.

Even assuming that (1) all provisions of the APA apply and (2) the Department may not vary them by regulation, solid authority holds that agencies may impose sanctions, short of fines and imprisonment, to enforce compliance with their discovery rules, particularly discovery orders made in the context of judicial-type proceedings. See Atlantic Richfield Co. v. U.S. Dep't of Energy, 769 F.2d 771, 794 (D.C. Cir. 1984). The District of Columbia Circuit recognized in Atlantic Richfield that it would be “incongruous to grant an agency authority to adjudicate—which involves vitally the power to find the material facts—and yet deny authority to assure the soundness of the factfinding process” through use of discovery sanctions. See also Roadway Express Inc. v. U.S. Dep't of Labor, 495 F.3d 477, 485 (7th Cir. 2007) (approving of ALJ's use of discovery sanction to “level the playing field” where party's non-compliance “made it impossible” for the ALJ to decide the case on the merits); McAllister Towing & Transp. Co., Inc. v. NLRB, 156 Fed. App'x 386, 388 (2d Cir. 2005) (affirming ALJ's imposition of discovery sanctions, citing Atlantic Richfield). But see NLRB v. Int'l Medication Sys., Ltd., 640 F.2d 1110, 1114 (9th Cir. 1981) (agency was required to enforce a subpoena through federal district court and could not preclude employer from introducing evidence on issue as sanction for failure to comply with subpoena). And while it is true that the APA prohibits an agency's imposition of sanctions “except within jurisdiction delegated to the agency and as authorized by law,” 5 U.S.C. 558(b), this provision, even if applicable, does not preclude sanctions aimed at protecting the integrity of the administrative process. Am. Bus Ass'n v. Slater, 231 F.3d 1, 7 (D.C. Cir. 2000). See also Davy v. SEC, 792 F.2d 1418, 1421 (9th Cir. 1986) (general grant of regulatory authority to SEC was sufficient to allow adoption of rule providing for sanctioning accountants practicing before the agency).

Contrary to the commenters' implication, no different rule applies when sanctioning parties' representatives. Agencies have the inherent authority to discipline lawyers who appear before them. See Polydoroff v. I.C.C., 773 F.2d 372, 374 (D.C. Cir. 1985). See also 80 FR 28768, 28769-75 (May 19, 2015) (rejecting same concerns raised in response to the proposed Office of Administrative Law Judges Rules of Practice and Procedure, which also allowed imposition of sanctions in certain circumstances).

Nor does section 27 of the Longshore Act, 33 U.S.C. 927, incorporated into the BLBA by 30 U.S.C. 932(a), preclude the Department from imposing discovery sanctions. That provision authorizes adjudication officers to refer acts of contempt to a United States district court for punishment by fine or imprisonment. It does not preclude the Department from imposing the lesser sanctions set out in the proposed rule. See Atlantic Richfield, 769 F.2d at 795 (noting that “[a]n evidentiary preclusion order falls far short of an effort to exact compliance with a subpoena by a judgment of fine or imprisonment”).

Two commenters state that the list of possible sanctions in proposed § 725.413(c)(2) is unclear because it is non-exclusive, suggesting that the Department strike the sanctions list from the rule. The Department anticipates that in most instances, an adjudication officer will impose one of the listed sanctions, and therefore the presence of a sanctions list leads to greater clarity. An adjudication officer, who is charged with governing the conduct of proceedings and resolving contested issues of fact or law (see generally 20 CFR 725.455), should be free, however, to fashion a remedy unique to the particular case at hand when warranted. But to clarify this provision and allay any concerns that the non-exclusive list could lead to the imposition of fines or imprisonment, the Department has revised the rule to preclude these sanctions. Fines and imprisonment are inherent in contempt powers, which section 27 of the Longshore Act vests in the federal courts. 33 U.S.C. 927, as incorporated by 30 U.S.C. 932(a). This revision appears at § 725.413(e)(3) in the final rule.

Finally, one commenter proposed expanding available sanctions to include permanent disbarment of attorneys from all BLBA practice. The Department does not believe that this sanction is necessary to enforce the medical information disclosure rule effectively. An adjudicator's authority extends to determining the merits of an individual claim. See, e.g., 33 U.S.C. 919(a), as incorporated by 30 U.S.C. 932(a) (the adjudicator has the “authority to hear and determine all questions in respect of [a] claim”). Thus, the Department believes that any sanction's impact should be confined to the claim under consideration. The sanctions listed in § 725.413 are claim-specific and should be sufficient to protect the integrity of the claims process. The Department therefore declines to adopt this suggestion.

(e) Three commenters argue that requiring parties to exchange medical information is an overreaction to an isolated case, claiming that only one attorney engaged in the conduct addressed by proposed § 725.413. These commenters state that the Department cited only one case involving undisclosed medical information in the NPRM, and failed to fully assess the need for the rulemaking.

These comments are not accurate. Although the Department illustrated the need for the rule with a detailed summary of miner Gary Fox's claims, it also cited two additional cases (involving different attorneys) in the NPRM. 80 FR 23746. More importantly, the issue of withholding medical information generated by non-testifying experts has persistently recurred in black lung claims and has been litigated by some members of the associations making this comment. Several other commenters listed and described additional claims in which medical evidence was withheld. These cases, along with others the Department has identified, generally fall into three categories. In the first, the adjudication officer denies the party's (either the claimant's or the operator's) motion to compel discovery of the medical information because the party did not meet the standard for gaining discovery of a non-testifying expert's opinion imposed under the Office of Administrative Law Judges Rules of Practice and Procedure (OALJ Rules). See, e.g., Keener v. Peerless Eagle Coal Co., ALJ Ruling and Order on Claimant's Motion to Compel and Employer's Motion for Protective Order, 2004-BLA-06265 (Apr. 12, 2005), aff'd BRB Decision and Order, BRB No. 05-1008 (Jan. 26, 2007); Lester v. Royalty Smokeless Coal Co., ALJ Decision and Order on Remand Granting Benefits, 2004-BLA-05700 (Mar. 4, 2008). In the second, the claimant's motion to compel is granted, but the employer still avoids disclosure by accepting liability for benefits and paying the claim. See, e.g., Daugherty v. Westmoreland Coal Co., ALJ Order Remanding Case to District Director, 2001-BLA-00594 (Mar. 21, 2005); Renick v. Consolidation Coal Co., ALJ Order of Remand for Payment, 2002-BLA-00083 (Sept. 9, 2002); and Harris v. Westmorland Coal Co., Order Denying Claimant's Request for Reconsideration, 1998-BLA-0188 (Aug. 7, 1998). And in the third, the motion to compel is granted and the medical information is disclosed. See, e.g., Wood v. Elkay Mining Co., ALJ Decision and Order—Awarding Benefits, 2001-BLA-00701 (May 23, 2007); Huggins v. Windsor Coal Co., BRB Decision and Order, BRB No. 06-0710 (Aug. 15, 2007). It is the first two categories of cases in which § 725.413 will change the result by requiring the exchange of previously undisclosed medical information.

These commenters also assert that the Department failed to quantify the general impact of non-disclosure on miners' health. Doing so with any certainty is impractical for several reasons. By their nature, these cases come to light only when a party takes affirmative action to discover medical information; the Department cannot quantify the volume of undisclosed medical information in cases where parties do not pursue discovery of that information and, in fact, might not even know of its existence. The same is true in those instances where the employer has chosen to accept liability for the claim rather than disclosing the non-testifying expert's opinion. The Department also cannot assess whether any particular piece of medical information would have an impact on any one miner's course of treatment or disease. But common sense dictates that better-informed miners and medical providers are able to make better decisions regarding a miner's care.

And, to the extent these commenters are correct in stating that, with very few exceptions, parties already exchange all medical information developed, they should not be affected by the final rule. Apart from a slightly earlier deadline for exchanging medical information, § 725.413 will not change those parties' current practice.

Despite the practical barriers to the suggested analysis, Congress was certain in its primary direction to the Department: “[T]he first priority and concern of all in the coal or other mining industry must be the health and safety of its most precious resource—the miner.” 30 U.S.C. 801(a). Congress also explicitly recognized the importance of medical information to miners' health when it mandated medical screening to detect pneumoconiosis and provided that miners with evidence of pneumoconiosis could transfer to less-dusty areas of the mine site. 30 U.S.C. 843(a) (requiring underground coal mine operators to offer chest X-ray evaluations to miners periodically); 30 U.S.C. 843(b) (“[A]ny miner who, in the judgment of the Secretary of Health and Human Services based upon [a chest X-ray] reading or other medical examinations, shows evidence of the development of pneumoconiosis shall be afforded the option of transferring from his position to another position in any [less-dusty] area of the mine, for such period or periods as may be necessary to prevent further development of such disease[.]”). Section 725.413 fully comports with Congress' desires.

(f) The Department received several comments suggesting various clarifications and other changes to the proposed definition of “medical information” at § 725.413(a). As proposed, “medical information” includes medical data about a miner that was developed in connection with a claim for benefits (§ 725.413(a)) and that is: (1) An examining physician's assessment of the miner, including findings, test results, diagnoses, and conclusions (§ 725.413(a)(1)); or (2) any other physician's or medical professional's opinion or interpretation of tests, procedures and related documentation, but only to the extent they address the miner's respiratory or pulmonary condition (§ 725.413(a)(2)-(4)). 80 FR 23747, 23752. Thus, the medical data subject to disclosure is generally limited to data generated in the claim's litigation and relevant to the primary question in the claim—the miner's respiratory or pulmonary condition.

(1) Two commenters express concern that proposed § 725.413(a) does not specifically exclude a miner's medical treatment records from the definition of “medical information” subject to mandatory exchange between parties. As the Department explained in the NPRM, 80 FR 23747, treatment records are not medical data a party “develops in connection with a claim” and thus do not meet the definition of “medical information.” Instead, these records are generated in the routine course of a miner's treatment and, if pertinent to the miner's respiratory or pulmonary condition, are admissible without limitation. 20 CFR 725.414(a)(4). But to allay any concern, the Department has revised § 725.413 to explicitly exclude treatment records from the “medical information” subject to exchange between the parties under this regulation. The new language is in paragraph (b)(1) of the final regulation.

(2) Several commenters assert that § 725.413 should exclude from “medical information” all draft medical reports. These same commenters also urge the Department to exclude all communications between a party's attorney and its medical experts. For the reasons that follow, the Department disagrees that draft medical reports should be excluded from “medical information” but has adopted the commenters' suggestion to exclude attorney communications with experts from § 725.413's disclosure requirements.

To support their request for these exclusions, the commenters point variously to Federal Rule of Civil Procedure 26(b)(4)(B) and (C) and the OALJ Rules, 80 FR 28793 (May 19, 2015) (to be codified at 29 CFR 18.51(d)), which incorporate the concepts embodied in the Federal Rule. When an expert is required to submit written reports or other disclosures, those rules protect his or her draft reports from discovery. Fed. R. Civ. P. 26(b)(4)(B); 80 FR 28793 (to be codified at 29 CFR 18.51(d)(2)). Similarly, the rules generally protect from disclosure communications between the party's attorney and the expert witness except when those communications pertain to the expert's compensation, facts or data the attorney provided to the expert, or assumptions provided by the attorney to the expert that the expert relied on in forming his or her opinion. Fed. R. Civ. P. 26(b)(4)(C); 80 FR 28793 (to be codified at 29 CFR 18.51(d)(3)). These rules are designed to allow discovery of the facts and data on which the expert bases his or her opinion without unnecessarily interfering with effective communication between the attorney and the expert or disclosing the attorney's mental impressions and theories about the case. See generally Fed. R. Civ. P. 26, Advisory Committee comment to 2010 amendments.

As noted above (see Section II, supra), formal rules of procedure do not strictly apply in black lung claims adjudications. And a program-specific regulation applies over either the Federal Rules or the OALJ Rules. 80 FR 28785, to be codified at 29 CFR 18.10 (OALJ rules do not apply “[i]f a specific Department of Labor regulation governs[,]” and the Federal Rules of Civil Procedure apply only in situations not provided for in the OALJ rules or other governing regulation). See also 80 FR 28773 (discussing 29 CFR 18.10 and stating that “[n]othing in [the OALJ] rules would prevent the Department from adopting a procedural rule that applies only in BLBA claim adjudications or other program-specific contexts.”).

In this instance, the Department believes a rule governing draft reports designed specifically for the Black Lung program will serve the program's purposes better than the general rule. Exempting all draft medical reports from § 725.413's disclosure requirements could easily eviscerate the rule: The disclosure requirement could be avoided simply by labeling any medical report a “draft.” Any party could solicit additional medical opinions on the miner's condition and simply not share them with the opposing party, or perhaps even their remaining expert witnesses. If an employer engaged in that conduct, a primary purpose of the rule—protecting the health and safety of the miner by ensuring access to all information about his or her health—would be thwarted. And if a claimant did the same, another primary purpose of the rule—accurate claims adjudication—could be in jeopardy.

On the other hand, the Department does not see a similarly compelling need to routinely require disclosure of communications from an attorney (or non-attorney representative, see 20 CFR 725.363(b)) to a medical expert. When prepared by an attorney, these communications are generally protected from disclosure, except in the circumstances noted above, and are more likely to include the attorney's impressions and legal analysis of the case. And they generally do not have a direct bearing on protecting the miner's health. Accordingly, the Department believes these communications should not be considered “medical information” subject to mandatory exchange with the other parties. The Department has added new language to paragraph (b)(2) in the final rule to exclude attorney (and non-attorney representative) communications from the rule's disclosure requirements. The Department notes, however, that the exclusion would not protect disclosure of these communications when otherwise ordered. See, e.g, Elm Grove Coal, 480 F.3d at 299-303. The rule simply does not require their exchange.

(3) Two commenters ask the Department to revise § 725.413(a) to include “an exhaustive list” of “medical information” that must be exchanged. They claim that the proposed rule does not adequately describe the scope of covered information. To illustrate, the commenters point to several examples, such as data the Social Security Administration considers “health information” (e.g., a patient's method of bill payment) and suggest that “medical information” could be construed to include such data.

The Department has not added a complete list of “medical information” to the final rule. As explained, the rule expressly limits disclosure to medical information developed in connection with a claim for benefits and, with the exception of an examining physician's report, further limits required disclosure to data addressing the miner's respiratory or pulmonary condition. These two limitations serve to substantially narrow and define the scope of information that must be exchanged with opposing parties (e.g., data about a billing method would not meet the criteria).

Moreover, developing an exhaustive list would not be practical because it could easily omit relevant medical data. Another black lung program regulation (20 CFR 718.107(a)) correctly countenances the possibility that medical testing methods other than those explicitly addressed in the regulations may be used to evaluate a miner's respiratory or pulmonary condition. See id. (allowing for admission of “any medically acceptable test or procedure reported by a physician and not addressed in this subpart, which tends to demonstrate the presence or absence of pneumoconiosis, the sequelae of pneumoconiosis or a respiratory or pulmonary impairment”). Adopting a finite list in § 725.413 could inadvertently exclude otherwise important data, especially as testing methods evolve in the future.

(4) Two commenters ask the Department to clarify whether the form in which the party receives the medical information (i.e., written, electronic, or orally) affects the duty under § 725.413 to exchange that information. As proposed, § 725.413(a)(1) and (2) require the parties to exchange physicians' “written or testimonial assessment of the miner.” The remainder of the rule is silent regarding the form of the communication. The Department agrees that the rule should be clarified on this point and has revised paragraph (a) in the final rule. With this change, the Department intends to make all written medical information, whether received in electronic (e.g., email, facsimile, Web portal or other electronic media) or hard-copy format, subject to § 725.413's requirements. This would also include testimonial medical information resulting from depositions (e.g., transcripts of depositions). But the rule is not intended to cover oral communications. The Department has no mechanism to monitor oral communications, and compliance with such a rule would be impossible to enforce.

(g) Two commenters express concern that the proposed rule does not adequately address the interplay between § 725.413's disclosure requirements and § 725.414's evidence-limiting provisions (which restrict the number of objective tests and medical reports parties may offer into evidence), and may lead to confusion as to whether the new disclosure requirements expand the amount of medical evidence a party may offer beyond that currently allowed under § 725.414. The Department agrees with this comment and has added a new paragraph (d) to § 725.413 to clarify that disclosed medical information is not considered evidence in the claim. Section 725.413's disclosure requirements essentially replace traditional discovery tools. Like information gained through traditional discovery, medical information exchanged under § 725.413 does not automatically become a part of the record on which the claim's adjudication is based. Instead, only those pieces of medical information a party chooses to submit to the adjudicator as evidence are subject to § 725.414's evidence-limiting rules.

(h) On a related note, one commenter states that because district directors serve a dual role as a party (entitled to receive disclosed medical information under this rule) and an adjudicator, they could be confused about which pieces of exchanged medical information should be considered as evidence in the claim. This commenter suggests that the rule be revised to require private parties to disclose evidence to the Director only after a hearing has been requested. The Department disagrees with the suggested approach. District directors are skilled adjudicators who routinely sort through admissible and non-admissible pieces of medical information in issuing proposed decisions and orders. For example, when parties submit more evidence than allowed under the § 725.414 evidence-limiting rules (a not infrequent occurrence), district directors must eliminate from consideration the evidence exceeding the limits when adjudicating the claim's merits. In addition, removing the district director from early disclosures would hamper their ability to administer the rule. The Department will ensure that district directors and their staffs receive training on the appropriate disposition and use of material disclosed under the rule.

(i) Several commenters ask that attorneys (and presumably non-attorney representatives as well) be exempt from liability for a client's failure to disclose medical information received by a party prior to the attorney's hiring. The Department concurs with this comment but does not believe a change in the proposed rule is necessary. Section 725.413(b) links the duty to exchange medical information to its “receipt.” An attorney or representative new to the case cannot be held responsible for the party's (or the party's prior representative's) failure to timely exchange the information because the new representative was not in “receipt” of the medical evidence prior to their entry into the case. But once the new representative actually receives any medical information generated before they entered the case—for instance, from a claimant who gives his or her new attorney all of the paperwork they have related to the claim—the representative then has a duty to ensure that the medical information is exchanged with the other parties within thirty days in accordance with § 725.413(b).

(j) Several commenters contend that the rule denies due process to sanctioned parties because the regulation authorizes no form of review for a wrongful sanctions ruling. These commenters believe that a sanctions ruling cannot be reviewed along with the merits of a claim because the ruling cannot be reversed. While the Department believes that normal claim procedures are sufficient to protect the rights of sanctioned individuals, it has clarified the review procedure by adding a new paragraph (e)(4) to the final rule. Under this provision, a sanction imposed by a district director is subject to de novo review by an administrative law judge. The Department has adopted this approach because several of the listed sanctions—such as drawing an adverse inference against the non-disclosing party or limiting a non-disclosing party's claims, defenses, or right to introduce evidence—are closely tied to the adjudication of a claim's merits. By statute, the administrative law judge has the “authority to hear and determine all questions in respect of [a] claim.” 33 U.S.C. 919(a), as incorporated by 30 U.S.C. 932(a). These questions would include whether the party had “good cause” for not making the required disclosure and the appropriateness of the sanction chosen. Any administrative law judge's order resulting in a final disposition of the claim would be subject to immediate appeal to the Benefits Review Board, followed by appeal to an appropriate court of appeals. 33 U.S.C. 921(a), (c), as incorporated by 30 U.S.C. 932(a). And in the absence of a final claim disposition, a sanctioned party could choose to immediately appeal an order imposing sanctions to the Board, whose precedent allows it to accept such interlocutory appeals merely to direct the course of the adjudicatory process. See Niazy v. Capital Hilton Hotel, 19 BRBS 266, 269 (1987).

(k) No other significant comments were received concerning this section, and the Department has promulgated the remainder of the regulation as proposed.

(a)(1) The Department proposed revising § 725.414, which imposes limitations on the quantity of medical evidence each party may submit in a black lung claim. 20 CFR 725.414. Sections 725.414(a)(2) and (a)(3) allow each party to submit “no more than two medical reports” in support of its affirmative case. 20 CFR 725.414(a)(2)-(3). The current rule defines a “medical report” as a “written assessment of the miner's respiratory or pulmonary condition” that “may be prepared by a physician who examined the miner and/or reviewed the available admissible evidence.” 20 CFR 725.414(a)(1).

This definition of “medical report” at times created confusion over whether supplemental reports offered by a physician whose initial opinion had already been entered into evidence counted against the parties' two-report limit. 80 FR 23747. Parties obtain supplemental reports when they ask a physician to update his or her initial report by reviewing additional material, such as medical testing results or other physicians' opinions. To eliminate this confusion, the Department proposed revising the definition of a “medical report” to codify the Director's longstanding position that a physician's supplemental report is “merely a continuation of the physician's original medical report for purposes of the evidence-limiting rules and do[es] not count against the party as a second medical report.” 80 FR 23747. The Department noted that the proposed definition was consistent with the regulatory provision allowing physicians to review (either in a written report or oral testimony) the other admissible evidence, and a cost-effective means of providing medical-opinion evidence given the practical realities of black lung claims litigation. 80 FR 23747-48.

(2) Three commenters support the proposed rule as written. Four other commenters state general support for the rule, but question how a physician's supplemental medical report would be treated in a modification proceeding. See generally 20 CFR 725.310. Specifically, these commenters express concern over allowing physicians who submitted reports in the initial proceeding to submit supplemental reports on modification without those reports being counted against the party's evidentiary limits. The commenters believe this practice could lead to the development of limitless evidence, thwarting the purpose of the evidence-limiting rules.

(3) The Department does not believe this comment warrants a change in the proposed rule. In a modification proceeding, the regulations allow each party to submit one additional medical report in support of its affirmative case. 20 CFR 725.310(b). This provision supplements the limitations contained in § 725.414(a); thus, during modification, a party may submit up to the two medical reports allowed under § 725.414(a), if they were not submitted during the original claim proceedings, plus one additional medical report, for a total of three. Rose v. Buffalo Mining Co., 23 Black Lung Rep. 1-221, 1-226-28 (Ben. Rev. Bd. 2007).

Considering a physician's supplemental report as an extension of his or her original report is consistent with the Department's longstanding position that modification proceedings are a continuation of the initial claim. See Betty B Coal Co. v. Dir., OWCP, 194 F.3d 491, 498 (4th Cir. 1999). Moreover, this conclusion logically flows from a party's right to submit evidence not submitted during the initial claim proceedings to the extent allowed under § 725.414(a). Rose, 23 BLR at 1-227-28. Because a supplemental report could have been submitted during the initial proceedings without counting against the party, it is reasonable to allow the same accommodation during modification.

Finally, the regulations provide that a physician who submits a report during the initial proceedings could testify at hearing or by deposition during modification proceedings, without it counting against the party for purposes of the evidence-limiting rules. See 20 CFR 725.414(c) (“A physician who prepared a medical report admitted under this section may testify with respect to the claim at any formal hearing conducted in accordance with subpart F of this part, or by deposition.”). A testifying physician may address any admissible medical evidence submitted in the claim. See 20 CFR 725.457(d); 725.458. Thus, it makes little sense not to allow supplemental reports if a party could achieve the same result by having its physician testify during modification proceedings. See 80 FR 23748. Allowing submission of a written report is also consistent with the nature of black lung proceedings, where such reports are freely admissible.

The commenters' claim that this interpretation would result in limitless evidentiary development is overstated. Allowing supplemental reports from physicians whose opinions were admitted in the initial claim proceeding does not increase the number of physicians who may evaluate the miner's condition. As explained, that total remains at a maximum of three for each party in a modification proceeding. And development of supplemental reports in an undisciplined or unreasonable way is naturally constrained by other regulations. For example, physicians may review only admissible evidence, 20 CFR 725.414(a)(1), and the amount of admissible evidence overall is limited. See 20 CFR 725.414(a)(2)-(3). The limited number of test results, such as chest X-ray reports and pulmonary function tests, each party may submit restricts the number of supplemental reports necessary to review and comment on those tests.

(b)(1) The Department proposed a separate revision to § 725.414(a)(3)(iii). Currently, this provision authorizes the Director to exercise the rights of a responsible operator for the purposes of the evidence limitations only if: (1) The district director has not identified a potentially liable operator; or (2) all potentially liable operators have been dismissed. The Department proposed adding a third provision that would allow the Director to submit medical evidence, up to the limits allowed a responsible operator under the evidence-limiting rules, when the identified responsible operator stops defending a claim during the course of litigation because of adverse financial developments, such as bankruptcy or insolvency. 80 FR 23753.

The Department proposed this change because the current rule does not adequately protect the Trust Fund against unmeritorious claims in these circumstances. 80 FR 23748. Where an identified responsible operator ceases to defend a claim in litigation due to adverse financial developments, the current rule limits the Director's submissions to only the complete pulmonary evaluation that the Department gives to every miner as an opportunity to substantiate his or her claim. See generally 30 U.S.C. 923(b); 20 CFR 725.406, 725.414(a). This is true even though the Trust Fund may ultimately be liable for any benefits awarded. The proposed rule would give the Director the same rights to defend against a claim as if there were no responsible operator in the case. This means that in a miner's claim, the Director could submit as part of his affirmative case one medical opinion and set of testing in addition to the complete pulmonary examination afforded every miner who applies for benefits. See 20 CFR 725.414(a)(3)(iii).

(2) Two commenters support the rule as proposed. Several other commenters state that the rule needs clarification. The latter commenters agree that the Director should be able to defend unmeritorious claims in these circumstances, but only if the district director initially denied the claim. In cases initially awarded by the district director, the commenters express concern that the Director may use medical evidence previously developed by the no-longer-defending operator. They believe this would be improper for two reasons: (1) The Director would be impeaching his own witness (i.e., the physician who performed the Department-sponsored medical evaluation and whose opinion most likely supported the initial benefits award) with operator-generated evidence, and challenging the award at a later stage would call into question the district director's role as a neutral adjudicator; and (2) medical opinions generated by operators virtually always express views contrary to the BLBA, the implementing regulations, and science. The commenters further allege, without examples, that whether the district director initially awards or denies the claim, a conflict of interest arises should the Director later decide to defend a claim because earlier routine communications between the claimant and the district director could be used against the claimant. For the reasons that follow, the Department does not believe any changes should be made in the proposed rule based on these comments.

First, the Director is not obligated to continue to advocate for an award of benefits once that award has been proven by later evidence or an intervening adjudication to be incorrect. Hardisty v. Dir., OWCP, 776 F.2d 129, 130 (7th Cir. 1985) (Director not bound by initial award of benefits in later proceedings after liability transferred from the responsible operator to the Trust Fund); Pavesi v. Dir., OWCP, 758 F.2d 956, 960 (3d Cir. 1985) (Director has obligation to protect Trust Fund and is not bound by district director's initial award of benefits). See also Cornett v. Benham Coal, Inc., 227 F.3d 569, 573 n.2 (6th Cir. 2000) (in litigation of claim, Director may take a position contrary to district director's initial finding that claim should be denied). This approach makes sense both because the Director has a fiduciary duty to protect the Trust Fund against unmeritorious claims, see, e.g., Dir., OWCP v. Hileman, 897 F.2d 1277, 1281 n.2 (4th Cir. 1990), and later contrary evidence could prove more probative. For example, a district director could award benefits based on X-ray evidence of complicated pneumoconiosis (also known as progressive massive fibrosis) when a later autopsy report affirmatively demonstrates that the miner did not have that form of the disease. The reverse could also occur (i.e., the district director denied the claim and an autopsy shows the miner suffered from complicated pneumoconiosis), compelling the Director to argue for an award of benefits. Neither scenario calls into question the district director's neutrality in adjudicating the claim based on the evidence before him or her.

Second, the commenters' fear that the Director would rely on operator-generated medical opinions that are contrary to the BLBA, the regulations or science overlooks the Director's longstanding, consistent history arguing for rejection of these problematic medical opinions. See, e.g., Harman Mining Co. v. Dir., OWCP, 678 F.3d 305, 314-16 (4th Cir. 2012) (endorsing the Director's argument that a physician's opinion was permissibly considered less persuasive when the physician's views conflicted with the Department's rationale for amending the regulations); Sea “B” Mining Co. v. Dunford, 188 F. App'x 191, 199 (4th Cir. 2006) (agreeing with the Director that operator's physician's opinion was based on two premises that are hostile to the Act and thus appropriately discredited); Hunt v. Kentland Elkhorn Coal Corp., 159 F. App'x 659, 661-62 (6th Cir. 2005) (the Director argued that operator's physicians' opinions must be rejected because both were based on premises inconsistent with the Act); Penn Allegheny Coal Co. v. Mercatell, 878 F.2d 106, 109-10 (3d Cir. 1989) (agreeing with the Director that the ALJ reasonably discredited physician's opinion based on premises “fundamentally at odds with the statutory and regulatory scheme”); Black Diamond Coal Mining Co. v. Benefits Review Board, 758 F.2d 1532 (11th Cir. 1985) (Director supported ALJ discounting testimony of a doctor as inconsistent with the Act when that physician stated that he would not diagnose pneumoconiosis in the absence of positive x-rays); Kaiser Steel Corp. v. Dir., OWCP, 748 F.2d 1426 (10th Cir. 1984) (Director argued that the ALJ had properly discredited as contrary to the findings and purposes of the Act the opinion of a physician who stated coal workers' pneumoconiosis was never impairing).

The Director does not intend to alter this policy. In each case—whether the claim was awarded or denied by the district director—the Director will evaluate any medical opinion evidence developed by the defunct operator and reject any evidence inconsistent with the BLBA, the regulations and supporting preambles. This is the same process the Director engages in now when an operator ceases to exist and liability for a claim in litigation is transferred to the Trust Fund.

Third, the allegation that routine information exchanged between the district director and the claimant could later be used to defeat the claim is unfounded. By statute, the Department wears two hats in black lung cases, with district directors conducting initial adjudications and the Secretary, represented by the Director, participating as a party-in-interest in all later proceedings. See generally 33 U.S.C. 919, as incorporated by 30 U.S.C. 932(a) (providing for district director determinations) and 30 U.S.C. 932(k) (making the Secretary a party in all cases). The district director receives claim filings, gathers factual information about the miner's employment history and dependents, and, in claims filed by a miner, arranges for a complete pulmonary examination. Based on this information and any evidence submitted by the parties, the district director proposes an initial entitlement decision. Findings made by the district director are not binding on an administrative law judge, who conducts an independent de novo review of the claim. See 20 CFR 725.455(a) (In general, “any findings or determinations made with respect to a claim by a district director shall not be considered by the administrative law judge”).

Given the de novo nature of the administrative law judge's adjudication, it is difficult to see how communications between the district director and the claimant could adversely impact the claimant. More importantly, for more than three decades the Director has defended proposed district director denials of benefits in claims for which the Trust Fund bears direct liability. See 26 U.S.C. 9501(d)(1)(B) (amounts in Trust Fund available to pay benefits when there is no liable operator). In these claims, the district director conducted an initial adjudication and the Director routinely participated in further proceedings, advocating for a denial of benefits unless the evidence demonstrated that the claimant was entitled to benefits. To the Department's knowledge, the Director has not used communications made between the claimant and the district director in a manner adverse to the claimant. And the commenters have pointed to no such instances.

Finally, the Department disagrees with one commenter's suggestion that operators be required to certify the reason for their inability to pay continuing benefits. Requiring certification from a bankrupt or insolvent operator would place too high an administrative burden on the Department. In some instances, locating a person who could act on the defunct operator's behalf may be impossible. And, even assuming the operator continues to exist in some form, an operator lacking financial capacity to pay benefits has little incentive to respond to a certification request. The rule, and the protection it affords the Trust Fund, would be rendered useless if an operator either failed or simply refused to supply any required certification.

(c) No other significant comments were received concerning this section, and the Department has promulgated § 725.414 as proposed.

(a) Currently, § 725.601(b) refers to “payments in addition to compensation” and cross references § 725.607. The proposed rule replaced this phrase with “payments of additional compensation.” 80 FR 23753. The Department intended this to be a technical change, unifying this language with a simultaneously proposed change to § 725.607. 80 FR 23748.

(b) One commenter objected, contending that the wording change is substantive and would impose unauthorized penalties on operators. The Department disagrees with this comment. The change to this rule is technical in nature and, as stated in the NPRM, no substantive change is intended. Id. For this reason, as well as the reasons set forth in the discussion under § 725.607, the Department is promulgating this rule as proposed.

(a) Section 725.607 implements section 14(f) of the Longshore Act, an incorporated provision. 33 U.S.C. 914(f), as incorporated by 30 U.S.C. 932(a). Section 14(f) generally provides that claimants are entitled to receive from a liable coal mine operator 20 percent of any compensation owed under the terms of an award that is not paid within ten days of the date payment is due. By regulation, payment is due “on the fifteenth day of the month following the month for which the benefits are payable.” 20 CFR 725.502(b)(1); see also 20 CFR 725.502(a). The operator is liable for the 20 percent amount even if the Trust Fund pays ongoing benefits to the claimant on an interim basis. 20 CFR 725.607(b).

The Department proposed revising both the title of § 725.607 and the text of paragraph (c) by replacing the phrase “payments in addition to compensation” with the phrase “payments of additional compensation.” 80 FR 23853-54. As explained in the NPRM, 80 FR 23748-49, section 725.607(b) uses the phrase “additional compensation,” and conforming the title and paragraph (c) to that language adds clarity to the regulation and “eliminate[s] any possibility that the regulation's phrasing could confuse readers.” 80 FR 23749; see also 20 CFR 725.530(a) (cross-referencing § 725.607 and describing potential operator liabilities as including “additional compensation”). The phrase “additional compensation” reflects the Director's view, as well as the view of the majority of courts that have considered the issue, that payments made under Longshore Act section 14(f) are compensation rather than penalties. 80 FR 23748.

(b) Four commenters contend that the proposed revisions to the title and paragraph (c) impose new and unauthorized penalties on operators. Although these commenters concede that section 14(f) is incorporated into the BLBA, they challenge application of the provision to the BLBA program.

Using the phrase “additional compensation” consistently throughout the regulations does not impose any new or unauthorized penalties on operators. The Department has had a regulation interpreting and applying section 14(f)'s 20 percent additional compensation provision to unpaid black lung benefits since 1978. See 43 FR 36814-15 (Aug. 18, 1978). Clarifying the language neither adds a new provision nor alters the character of the 20 percent additional compensation payment to a penalty. The Department is therefore promulgating the rule as proposed.

The Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq., and its implementing regulations, 5 CFR part 1320, require that the Department consider the impact of paperwork and other information collection burdens imposed on the public. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the Office of Management and Budget (OMB) under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person may generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number. See 5 CFR 1320.5(a) and 1320.6.

In the NPRM, the Department noted that proposed § 725.413, which, as discussed above, requires parties to exchange certain medical information, could be considered a collection of information within the meaning of the PRA. 80 FR 23749. Accordingly, the Department submitted an Information Collection Request (ICR) to OMB for approval. See ICR Reference Number 201504-1240-002. The NPRM specifically invited comments regarding the information collection and notified the public of their opportunity to file such comments with both OMB and the Department. 80 FR 23749. On July 24, 2015, OMB concluded its review of the ICR by asking the Department to submit another ICR at the final rule stage and after considering any public comments regarding the information collection requirements in the rule.

The Department received comments on the substance of proposed § 725.413; these comments are fully addressed in the Section-by-Section Explanation above. The Department received no comments about the information collection burdens. The Department has submitted an ICR to OMB for the information collection in this final rule. See ICR Reference Number 201511-1240-003. A copy of this request (including supporting documentation) may be obtained free of charge from the Reginfo.gov Web site at http://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=201511-1240-003, or by contacting Michael Chance, Director, Division of Coal Mine Workers' Compensation, Office of Workers' Compensation Programs, U.S. Department of Labor, 200 Constitution Avenue NW., Suite N-3464, Washington, DC 20210. Telephone: (202) 693-0978 (this is not a toll-free number). TTY/TDD callers may dial toll-free 1-800-877-8339. OMB is currently reviewing the ICR. The Department will publish a notice in the Federal Register when OMB concludes its review of the ICR.

The information collection and its burdens are summarized as follows:

Agency: DOL-OWCP.

Title of Collection: Disclosure of Medical Information.

OMB Control Number: 1240-0054.

Affected Public: Private Sector: Businesses and other for-profits.

Total Estimated Number of Respondents: 4,074.

Total Estimated Number of Responses: 4,074.

Total Estimated Annual Time Burden: 679 hours.

Total Estimated Annual Other Costs Burden: $6,681.

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The Department has considered the final rule with these principles in mind and has determined that the regulated community will benefit from these new and revised regulations.

The Department addressed these issues in the NPRM. 80 FR 23749-50. With regard to § 725.310(e), which requires operators to pay effective awards of benefits while seeking to modify them, the Department stated that the proposed rule was “cost neutral” because it merely enforced operators' existing legal obligations under the Act. 80 FR 23749. The Department also noted that even if § 725.310(e) were construed as imposing a new obligation, any additional costs would not be burdensome because operators must reimburse the Trust Fund (with interest) when unsuccessful on modification, operators are not often successful on modification, and if successful, operators may seek reimbursement from the claimant for at least some of the benefits paid. 80 FR 23750. Apart from the potential monetary impact, the Department determined that § 725.310(e) struck an appropriate balance between claimants, who are made whole under the rule, and operators, who may seek a stay of payments if they would be irreparably harmed by making them. 80 FR 23750.

The Department similarly concluded that the benefits of § 725.413, which requires the parties to exchange all medical information they develop in connection with a claim, far outweighed any minimal administrative burden the rule might place on parties. 80 FR 23750. These benefits include protecting miners' health and reaching more accurate claims determinations. The Department also noted that the rule may not have broad impact because parties often already exchanged all of the medical information in their possession. Id.

The Department has considered the final rule with these principles in mind and has determined that the regulated community will benefit from these new and revised regulations. One comment, in which four entities joined, generally criticized the Department for not demonstrating why these rule revisions were necessary. The comment states that the Department provided no empirical data to support them and instead cited only unrepresentative anecdotes documenting mostly non-existent problems that do not accurately characterize how black lung claims are handled. The comment also alludes generally to significant expenses imposed on coal mine operators and their insurers by the Department but provides no specific information regarding how these rules in particular impose increased costs. In addition to these general allegations, this comment states that the Department did not conduct an empirical review of the impact of § 725.310 and did not adequately consider the actual impact § 725.413 would have on miners' health.

The Department does not believe this comment compels a different conclusion regarding the benefits of this rulemaking. The Department has administered the black lung program for more than three decades and been a party in hundreds of thousands of claims. As a result, the Department is intimately familiar with how black lung claims are litigated by all parties. To further illustrate that §§ 725.310(e) and 725.413 respond to non-illusory problems, the Department has added additional representative case examples in the Section-by-Section Explanation above (see Section III, supra). While these modification and discovery issues do not arise in every case, they arise frequently enough—and can have sufficiently important consequences when they do arise—that resolution by regulatory action is appropriate.

On the more specific comments, § 725.310(e), as discussed above (see Section III, supra), enforces an existing legal obligation imposed on operators by the statute and implementing regulations. Absent a stay of payments ordered by the Benefits Review Board or a court, operators are obligated to pay effective benefits awards, regardless of any other proceedings in the claim. The statute and regulations already mandate that any associated economic burden be borne by operators rather than the Trust Fund. The only new burden the rule places on operators is to demonstrate that they have complied with the relevant orders. For operators that are in compliance, this showing will not be difficult. This minimal burden does not outweigh the Department's duty to ensure that claimants receive all benefits when due and to protect the Trust Fund's assets.

Similarly, the benefits associated with § 725.413 far outweigh any additional minimal burden the regulation will impose on the parties. For the reasons explained above (see Section III, supra), the Department cannot quantify the actual impact of non-disclosure of medical information on miners' health with any certainty. But the rule is fully consistent with the Mine Safety and Health Act's prime directive: To protect the health and safety of the miner. Section 725.413 also affords unrepresented claimants an even playing field when litigating their claims and increases the possibility of more accurate entitlement determinations. Balanced against these important interests is the minimal administrative burden of exchanging all medical information a party develops about the miner with the other parties, a practice several objecting commenters state the parties have routinely followed in all but a few instances. Thus, to the extent § 725.413 mandates such practice, the impact on the parties should be very small.

Finally, one comment stated that several parts of the proposed rules violated the various directions in Executive Orders 12866 and 13563 that rules be clear and written in plain language. The Department has responded to these comments in discussing the substance of each rule in the Section-by-Section Explanation above.

This rule is a significant regulatory action under section 3(f)(4) of Executive Order 12866 and has been reviewed by the Office of Information and Regulatory Affairs in the Office of Management and Budget.

The Regulatory Flexibility Act of 1980, as amended, 5 U.S.C. 601 et seq. (RFA), requires an agency to evaluate the potential impacts of their proposed and final rules on small businesses, small organizations, and small governmental jurisdictions and to prepare a “regulatory flexibility analysis” describing those impacts. But if the rule is not expected to have “a significant economic impact on a substantial number of small entities,” the RFA allows the agency to so certify in lieu of preparing the analysis. 5 U.S.C. 605(b).

In the NPRM, the Department determined that a complete regulatory flexibility analysis was not necessary, set forth the factual basis for this conclusion, and certified that the revised rule would not have a significant economic impact on a substantial number of small entities. 80 FR 23750. The Department provided a copy of that certification to the Chief Counsel for Advocacy of the Small Business Administration, see 5 U.S.C. 605(b), and invited public comment on the certification.

The Chief Counsel for Advocacy has not filed comments on the certification. Moreover, no public comments address any adverse economic impacts this rule will have on small coal mine operators. Because the comments do not provide a basis for departing from its prior conclusion, the Department again certifies that this rule will not have a significant economic impact on a substantial number of small entities. Thus, no regulatory flexibility analysis is required.

Title II of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531 et seq., directs agencies to assess the effects of Federal Regulatory Actions on State, local, and tribal governments, and the private sector, “other than to the extent that such regulations incorporate requirements specifically set forth in law.” 2 U.S.C. 1531. For purposes of the Unfunded Mandates Reform Act, this rule does not include any Federal mandate that may result in increased expenditures by State, local, tribal governments, or increased expenditures by the private sector of more than $100,000,000.

The Department has reviewed this rule in accordance with Executive Order 13132 regarding federalism, and has determined that it does not have “federalism implications.” Executive Order 13132, 64 FR 43255, Aug. 4, 1999. The rule will not “have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Id.

This rule was drafted and reviewed in accordance with Executive Order 12988, Civil Justice Reform, and it will not unduly burden the Federal court system. The final rule was: (1) Carefully reviewed to eliminate drafting errors and ambiguities; (2) written to minimize litigation; and (3) provides clear legal standards for affected conduct. The rule also specifies when its provisions apply.

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 report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. OWCP will report this rule's promulgation to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States simultaneously with publication of the rule in the Federal Register. The report will state that the rule is not a “major rule” as defined by 5 U.S.C. 804(2).

For the reasons set forth in the preamble, the Department of Labor amends 20 CFR part 725 as follows:

On March 2, 2015, the IRS and the Treasury Department published a notice of proposed rulemaking (REG-136018-13) in the Federal Register (80 FR 11141) proposing the method to be used to determine the adjusted AFRs for tax-exempt obligations under section 1288 and the method to be used to determine the long-term tax-exempt rate and the adjusted Federal long-term rate under section 382. No comments were received on the notice of proposed rulemaking. No public hearing was requested or held. Accordingly, this Treasury decision adopts the proposed regulations without substantive change.

The regulations in this Treasury decision provide the new method by which the Treasury Department and the IRS will determine the adjusted AFRs under section 1288 to take into account the tax exemption for interest on tax-exempt obligations (as defined in section 1275(a)(3) and § 1.1275-1(e)). The regulations also provide that the Treasury Department and the IRS will use the new method to determine the long-term tax-exempt rate and the adjusted Federal long-term rate under section 382(f) to take into account differences between rates on long-term taxable and tax-exempt obligations.

Since November 1986, the adjusted Federal long-term rate published under section 382(f)(2) has been equal to the long-term adjusted AFR with annual compounding published under section 1288(b) in the same month. See Rev. Rul. 86-133 (1986-2 CB 59). For calendar months from November 1986 to February 2013, the Treasury Department determined the adjusted Federal long-term rate and each adjusted AFR described in section 1288(b)(1) by multiplying the corresponding AFR by a fraction (the adjustment factor). The numerator of the adjustment factor was a composite yield of the highest-grade tax-exempt obligations available, which are prime, general obligation tax-exempt obligations. The denominator was a composite yield of U.S. Treasury obligations with maturities similar to those of the tax-exempt obligations. Each of the composite yields was measured over a one-month period.

The IRS published Notice 2013-4 (2013-9 IRB 527) on February 25, 2013, requesting comments on possible modifications to the method by which adjusted AFRs and the adjusted Federal long-term rate are determined. The IRS requested comments on these possible modifications because, since the beginning of 2008, market yields of prime, general obligation tax-exempt obligations had sometimes exceeded market yields of comparable U.S. Treasury obligations, causing the adjusted Federal long-term rate and each adjusted AFR to exceed the corresponding AFRs. Adjusted rates that are higher than the corresponding AFRs indicate that the adjustment factor no longer served the purposes of sections 1288(b)(1) and 382(f)(2), which were intended to adjust only for the tax exemption. These rates were also inconsistent with the express intention of Congress that the adjusted Federal long-term rate and the long-term tax-exempt rate be lower than the Federal long-term rate. See 2 H.R. Rep. No. 99-841 (Conf. Rep.), 99th Cong., 2d Sess. II-188 (1986) (1986-3 CB (Vol. 4) 1, 188).

Notice 2013-4 also provided that, until the Treasury Department and the IRS issue further guidance, the adjusted AFRs and the long-term tax-exempt rate would continue to be calculated using the adjustment factor, except that the adjustment factor would equal one (1) for any month in which the adjustment factor would otherwise be greater than one or in which the denominator of the adjustment factor would otherwise be less than or equal to zero.

After reviewing comments received in response to Notice 2013-4, the Treasury Department and the IRS issued a notice of proposed rulemaking (REG-136018-13) proposing the regulations that are adopted in this Treasury decision. The regulations use historical market data to create an appropriate adjustment factor based on individual tax rates. The regulations provide that the adjusted AFRs and the adjusted Federal long-term rate for each month will be determined from the appropriate AFRs for that month using the adjustment factor that results from the following calculation: 100 percent—[(a combined tax rate) x (a fixed percentage)].

The tax rate in the adjustment factor is the sum of the maximum individual rate under section 1 and the maximum individual rate under section 1411 for the month to which the rate applies. The fixed percentage is the amount by which that combined tax rate must be multiplied to reflect the historical relationship between the maximum tax rate and the spread between yields of taxable and tax-exempt obligations. The fixed percentage in the adjustment factor is 59 percent, because the yield on tax-exempt obligations from February 1986 to July 2007 was lower than that of comparable taxable obligations by, on average, 59 percent of the maximum individual rate in effect under section 1.

Therefore, the adjustment factor under current tax rates would be 74.39 percent, the result of subtracting 25.61 percent (the product of 43.4 percent (the sum of the current maximum individual rate under section 1 (39.6 percent) and the current maximum individual rate under section 1411 (3.8 percent)) and 59 percent) from 100 percent. If an AFR for a given month were 5 percent, under current tax rates, the corresponding adjusted AFR would be 3.72 percent: The product of 74.39 percent and 5 percent. If that 5 percent AFR were the Federal long-term rate for debt instruments with annual compounding, the adjusted Federal long-term rate under section 382 would likewise be 3.72 percent.

As noted previously, because no comments were received on the proposed regulations, the final regulations adopt the proposed regulations without substantive change.

These regulations apply to determine the adjusted AFRs, adjusted Federal long-term rate, and long-term tax-exempt rate beginning with the rates determined during August 2016 that apply during September 2016.

Certain IRS regulations, including this one, are exempt from the requirements of Executive Order 12866, as supplemented and reaffirmed by Executive Order 13563. Therefore, a regulatory impact assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and because the regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Code, the proposed regulations preceding these final regulations were submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact on small businesses. No comments were received.

The principal authors of these regulations are Jason G. Kurth, IRS Office of the Associate Chief Counsel (Financial Institutions and Products) and William W. Burhop, IRS Office of the Associate Chief Counsel (Corporate). However, other personnel from the Treasury Department and the IRS participated in their development.

The IRS revenue ruling and notice cited in this Treasury decision are made available by the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402.

Accordingly, 26 CFR part 1 is amended as follows:

The final regulations (TD 9751) that are the subject of this correction are under section 897 and1445 of the Internal Revenue Code.

As published, the final regulations (TD 9751) contain errors that may prove to be misleading and are in need of clarification.

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

In this document, the Bureau revises the Residential Drug Abuse Treatment Program (RDAP) regulations to allow greater inmate participation in the program and positively impact recidivism rates. Specifically, the Bureau (1) removes the regulatory requirement for RDAP written testing because it is more appropriate to assess an inmate's progress through clinical evaluation of behavior change (the written test is no longer used in practice); (2) removes existing regulatory provisions which automatically expel inmates who have committed certain acts (e.g., abuse of drugs or alcohol, violence, attempted escape); (3) limits the time frame for review of prior offenses for early release eligibility purposes to ten years before the date of federal imprisonment; and (4) lessens restrictions relating to early release eligibility.

The proposed rule was published on July 22, 2015, (80 FR 43367). The comment period ended on September 21, 2015. In the proposed rule, we described the following changes:

Section 550.50 Purpose and scope. The regulation previously stated that Bureau facilities have drug abuse treatment specialists who are supervised by a Coordinator and that facilities with residential drug abuse treatment programs (RDAP) should have additional specialists for treatment in the RDAP unit. This is inaccurate. We proposed to change the regulation to explain that the Bureau's drug abuse treatment programs, which include drug abuse education, RDAP and non-residential drug abuse treatment services, are provided by the Psychology Services Department.

We also proposed to make a minor corresponding change in § 550.53(a)(1), which also refers inaccurately to the Drug Abuse Program Coordinator, when instead the course of activities referenced in that regulation is provided by the Psychology Services Department.

Section 550.53 Residential Drug Abuse Treatment Program (RDAP)(f)(2). The Bureau proposed to remove subparagraph (f)(2) of § 550.53, which required inmates to pass RDAP testing procedures and referred to an RDAP exam. The RDAP program no longer includes written testing as a requirement for completion of the program. Instead, RDAP uses clinical observation and clinical evaluation of inmate behavior change to assess readiness for completion. Therefore, the current language is inaccurate and imposes a requirement upon inmates that no longer exists.

In 2010, the Bureau converted the Residential Drug Abuse Treatment Programs to the Modified Therapeutic Community Model of treatment (MTC). This evidenced-based model is designed to assess progress through treatment as determined by the participants' completion of treatment goals and activities on their individualized treatment plan, and demonstrated behavior change. Each participant jointly works with their treatment specialist to create the content of their treatment plan. Every three months, or more often if necessary, each participant meets with their clinical team (four or more treatment staff) to review their progress in treatment. Progress in treatment is determined through assessing the accomplishment of their treatment goals and activities, along with demonstrated behavior change, such as improved personal and social conduct, no disciplinary incidents, etc. Unsatisfactory progress is evident when the participant does not accomplish their treatment goals and does not demonstrate mastery of skill development.

There are several studies about the effectiveness of the MTC model of treatment. The most seminal study pertaining to this topic is titled “Outcome Evaluation of A Prison Therapeutic Community for Substance Abuse Treatment.” 1

This behavioral form of assessing progress is a much more powerful form of assessment than assessing the results of a written test. The written test assesses knowledge, but knowledge does not necessarily demonstrate whether the program has positively affected an individual's behavior or addictive lifestyle.

All of the treatment coordinators in the Bureau have a doctorate degree in psychology. They are well qualified to use their knowledge of treatment and the behavior of individuals suffering from substance abuse to objectively determine if a participant is ready to complete the program. There are three decades of evaluation research that support the efficacy of the therapeutic community model of treatment. The most comprehensive source of program description, theory, and summary of research associated with this model of treatment is found in the book entitled The Therapeutic Community: Theory, Model, and Method. New York: Springer Publishing Company, Inc. (De Leon, G. (2000).

Section 550.53(g) Expulsion from RDAP. We proposed to remove § 550.53(g)(3), which required Discipline Hearing Officers (DHOs) to remove an inmate automatically from RDAP if there is a finding that the inmate has committed a prohibited act involving alcohol, drugs, violence, escape, or any 100-level series incident.

Removing the language gives the Bureau more latitude and clinical discretion when determining which inmates should be expelled from the program. Inmates will then only be expelled from RDAP according to criteria in § 550.53(g)(1) which allows inmates to be removed from the program by the Drug Abuse Program Coordinator because of disruptive behavior related to the program or unsatisfactory progress in treatment, and requires at least one formal warning before removal, unless there is documented lack of compliance and the inmate's continued presence would present an immediate problem for staff and other inmates.

Removing paragraph (g)(3) removes the automatic expulsion of inmates committing the listed prohibited acts and allows for greater possibility of continuance of the program for inmates with discipline problems.

Section 550.55(b) Inmates not eligible for early release. We proposed to modify language precluding inmates from consideration for early release if they have a prior felony or misdemeanor conviction for homicide, forcible rape, robbery, aggravated assault, arson, kidnaping, or an offense that involves sexual abuse of minors. The Bureau modifies this language to clarify that we intend to limit consideration of “prior felony or misdemeanor” convictions to those which were imposed within the ten years prior to the date of sentencing for the inmate's current commitment. By making this change, the Bureau clarifies that it will not preclude from early release eligibility those inmates whose prior felony or misdemeanor convictions were imposed longer than ten years before the date of sentencing for the inmate's current commitment.

Title 18 U.S.C. 3621(e) provides the Director of the Bureau of Prisons the discretion to grant an early release of up to one year upon the successful completion of a residential drug abuse treatment program. In exercising the Director's statutory discretion, we considered the crimes of homicide, rape, robbery, aggravated assault, arson, and kidnaping. In the FBI's Uniform Crime Reporting (UCR) Program, violent crime is composed of four offenses: Murder and nonnegligent manslaughter, rape, robbery, and aggravated assault. Violent crimes are defined in the UCR Program as those offenses which involve force or threat of force. The Director exercised his discretion, therefore, to include these categories of violent crimes and also expanded the list to include arson and kidnaping, as they also are crimes of an inherently violent nature and particular dangerousness to the public.

The Director exercises discretion to deny early release eligibility to inmates who have a prior felony or misdemeanor conviction for theses offenses because commission of such offenses rationally reflects the view that such inmates displayed readiness to endanger the public. The UCR explained that “because of the variances in punishment for the same offenses in different state codes, no distinction between felony and misdemeanor crimes was possible.”

The application of national standards to the numerous local, state, tribal, and federal prior convictions promotes uniformity, but creates unique issues since each separate entity will have its own criminal statutory schemes in which offenses may be categorized as either misdemeanors or felonies. Limiting the Bureau to an analysis of how an offense is categorized in local, state, tribal, or federal criminal codes, rather than to an analysis of the nature of the prior offense, would effectively prevent the Director from exercising the discretion authorized by 18 U.S.C. 3621(e). Furthermore, eliminating the analysis of prior violent misdemeanor convictions would allow inmates to receive the benefit of early release merely because of the manner in which the prior convictions were categorized.

Additionally, 28 CFR 550.55(b)(6) provides that inmates who have been convicted of an attempt, conspiracy, or other offense which involved certain underlying offenses are also precluded from early release eligibility. Many state statutes provide that “attempt” convictions are to be categorized as one degree lower than the underlying offense (e.g., Alaska Statutes sec. 11.31.100(d), N.C. Gen Stat. sec. 14-2.5, Tex. Penal Code sec. 15.01(d), and Wash. Rev. Code sec. 9A.28.020(3)). Therefore, eliminating the analysis of prior misdemeanor convictions may result in offenders convicted of attempting to commit a precluding offense being found eligible for early release, despite the provisions of 28 CFR 550.55(b)(6).

Further, based on a random sampling of inmates who participated in RDAP but were precluded from RDAP early release eligibility, the Bureau estimates that of the 856 inmates precluded in the year 2014 based only on convictions for prior offense, at least half that number would have been eligible for early release if the Bureau had not considered prior offenses greater than 10 years old. The Fiscal Year 2015 estimated annual marginal rate to incarcerate an inmate in the Bureau of Prisons is $11,324 per inmate. Based on an estimate of 400 inmates released up to a year early if this proposed rule change is made, that could equate to a cost avoidance of over $4.5 million per year.

Also, in § 550.55(b), the Director exercises his discretion to disallow particular categories of inmates from eligibility for early release, including, in (6), those who were convicted of an attempt, conspiracy, or other offense which involved an underlying offense listed in paragraph (b)(4) and/or (b)(5) of § 550.55. We narrowed the language of § 550.55(b)(6) to preclude only those inmates whose prior conviction involved direct knowledge of the underlying criminal activity and who either participated in or directed the underlying criminal activity. This change tailors the regulation to the congressional intent to exclude from early release consideration only those inmates who have been convicted of a violent offense. Furthermore, the changed language expands early release benefits to more inmates.

Beginning in 1991, in coordination with the National Institute on Drug Abuse, the Bureau conducted a 3-year outcome study of the RDAP. Federal Bureau of Prisons (2000). TRIAD Drug Treatment Evaluation Project Final Report of Three-Year Outcomes: Part I. (“TRIAD Study”). The study evaluated the effect of treatment on both male and female inmates (1,842 men and 473 women). This study demonstrates that the Bureau's RDAP makes a positive difference in the lives of inmates and improves public safety.

The TRIAD study showed that the RDAP program is effective in reducing recidivism. Male participants were 16 percent less likely to recidivate and 15 percent less likely to relapse than similarly situated inmates who do not participate in residential drug abuse treatment for up to 3 years after release. The analysis also found that female inmates who participate in RDAP are 18 percent less likely to recidivate than similarly situated female inmates who do not participate in treatment.

The TRIAD study defined criminal recidivism was defined two ways: (1) An arrest for a new offense or (2) an arrest for a new offense or supervision revocation. Revocation was defined as occurring only when the revocation was solely the result of a technical violation of one or more conditions of supervision (e.g., detected drug use, failure to report to probation officer). Drug use as a post-release outcome, for the purposes of the study, referred to the first occurrence of drug or alcohol use as reported by U.S. Probation officers (i.e., a positive urinalysis (u/a), refusal to submit to a urinalysis, admission of drug use to the probation officer, or a positive breathalyser test).

Offenders who completed the residential drug abuse treatment program and had been released to the community for three years were less likely to be re-arrested or to be detected for drug use than were similar inmates who did not participate in the drug abuse treatment program. Specifically, 44.3 percent of male inmates who completed the program were likely to be re-arrested or revoked within three years after release to supervision in the community, compared to 52.5 percent of those inmates who did not receive such treatment. For women, 24.5 percent of those who completed the residential drug abuse treatment program were arrested or revoked within three years after release, compared to 29.7 percent of the untreated women.

With respect to drug use, 49.4 percent of men who completed treatment were likely to use drugs within 3 years following release, compared to 58.5 percent of those who did not receive treatment. Among female inmates who completed treatment, 35.2 percent were likely to use drugs within the three-year postrelease period in the community, compared to 42.6 percent of those who did not receive such treatment.

Section 550.56 Community Transitional Drug Abuse Treatment Program (TDAT). In addition to changing “Transitional Drug Abuse Treatment Program (TDAT)” to “Community Treatment Services (CTS)” throughout this regulation as indicated earlier, we also deleted paragraph (c), which appears to require that inmates successfully completing RDAP and participating in transitional treatment programming must participate in such programming for one hour per month. The provision in the regulation was an error. It did not relate to Community Treatment Services (CTS), but instead related to RDAP. It was therefore unnecessary to retain this language. The substance of this language will be retained as implementing text in the relevant policy statement as part of RDAP procedures.

Comments: We received a total of 187 comments during the comment period. Approximately 77 were in support of the proposed rule. Eighteen “comments” sent, although captioned as “comments,” were not properly phrased as comments because they either related to personal accounts of inmate eligibility for drug abuse treatment and/or early release eligibility, or simply did not address issues raised in the proposed rule. We address the issues raised in the remaining 92 comments below.

Discussion of Comments: In summary, for the reasons discussed below, the Bureau adopts the regulatory changes of the proposed rule without change.

Comment: Inmates with gun possession offenses should be eligible for early release.

Approximately 58 commenters felt that eligibility for early release should be offered for participation in RDAP to inmates with “non-violent” offenses and/or inmates with convictions for offenses in which firearm possession was present but perhaps no evidence of actual use was found.

We have addressed this issue in the final rule published on January 14, 2009 (74 FR 1892), in which we stated the following:

Under 18 U.S.C. 3621(e), the Bureau has the discretion to determine eligibility for early release consideration (See Lopez v. Davis, 531 U.S. 230 (2001)). The Director of the Bureau exercises discretion to deny early release eligibility to inmates who have a felony conviction for the offenses listed in § 550.55(b)(5)(i)-(iv) because commission of such offenses illustrates a readiness to endanger the public. Denial of early release to all inmates convicted of these offenses rationally reflects the view that, in committing such offenses, these inmates displayed a readiness to endanger another's life.

The Director of the Bureau, in his discretion, chooses to preclude from early release consideration inmates convicted of offenses involving carrying, possession or use of a firearm and offenses that present a serious risk of physical force against person or property, as described in § 550.55(b)(5)(ii) and (iii). Further, in the correctional experience of the Bureau, the offense conduct of both armed offenders and certain recidivists suggests that they pose a particular risk to the public. There is a significant potential for violence from criminals who carry, possess or use firearms.

As the Supreme Court noted in Lopez v. Davis, “denial of early release to all inmates who possessed a firearm in connection with their current offense rationally reflects the view that such inmates displayed a readiness to endanger another's life.” Id. at 240. The Bureau adopts this reasoning. The Bureau recognizes that there is a significant potential for violence from criminals who carry, possess or use firearms while engaged in felonious activity. Thus, in the interest of public safety, these inmates should not be released months in advance of completing their sentences.

It is important to note that these inmates are not precluded from participating in the drug abuse treatment program. However, these inmates are not eligible for early release consideration because the specified elements of these offenses pose a significant threat of dangerousness or violent behavior to the public. This threat presents a potential safety risk to the public if inmates who have demonstrated such behavior are released to the community prematurely. Also, early release would undermine the seriousness of these offenses as reflected by the length of the sentence which the court deemed appropriate to impose.

Comment: All inmates participating in any kind of drug treatment should be eligible for early release, violent offenders should be eligible, non-U.S. citizens should be eligible:

Approximately 12 commenters stated that all inmates participating in any type of drug treatment with the Bureau of Prisons should be eligible for early release, including non-U.S. citizens and all other currently non-eligible inmates.

18 U.S.C. 3621(e) only authorizes the Bureau to extend drug abuse treatment participation and eligibility for early release to inmates with “a substance abuse problem,” not to all inmates. Although, by statute, inmates without a substance abuse problem may not have the opportunity for early release consideration, § 550.52 allows all inmates to participate in non-residential drug abuse treatment services. The final rule seeks to make the program even more inclusive.

In the final rule, we modify the language of § 550.55(b)(4), which precludes inmates from consideration for early release if they have a prior felony or misdemeanor conviction for homicide, forcible rape, robbery, aggravated assault, arson, kidnaping, or an offense that involves sexual abuse of minors. The Bureau modifies this language to clarify that we intend to limit consideration of “prior felony or misdemeanor” convictions to those which were imposed within the ten years prior to the date of sentencing for the inmate's current commitment. By making this change, the Bureau clarifies that it will not preclude from early release eligibility those inmates whose prior felony or misdemeanor convictions were imposed longer than ten years before the date of sentencing for the inmate's current commitment.

18 U.S.C. 3621(e) provides the Director of the Bureau of Prisons the discretion to grant an early release of up to one year upon the successful completion of a residential drug abuse treatment program. In exercising the Director's statutory discretion, we considered the crimes of homicide, rape, robbery, aggravated assault, arson, and kidnaping. In the FBI's Uniform Crime Reporting (UCR) Program, violent crime is composed of four offenses: Murder and non-negligent manslaughter, rape, robbery, and aggravated assault. Violent crimes are defined in the UCR Program as those offenses which involve force or threat of force. The Director exercised his discretion, therefore, to include these categories of violent crimes and also expanded the list to include arson and kidnaping, as they also are crimes of an inherently violent nature and particular dangerousness to the public.

As mentioned, this change is being made to clarify that inmates will be eligible for early release eligibility if their prior felony or misdemeanor convictions are older than ten years before the date of sentencing for the inmate's current commitment. In other words, for example, if an inmate's prior felony or misdemeanor was imposed nine years before the date of sentencing for the inmate's current commitment, the inmate WILL NOT be considered for early release eligibility. The Director exercises discretion to deny early release eligibility to inmates who have a prior felony or misdemeanor conviction for theses offenses (within the ten years prior to the date of sentencing for the inmate's current commitment) because commission of such offenses rationally reflects the view that such inmates displayed readiness to endanger the public. The UCR explained that “because of the variances in punishment for the same offenses in different state codes, no distinction between felony and misdemeanor crimes was possible.”

It is important to note that the Bureau does not deny drug abuse treatment to any inmates, including inmates who are not U.S. citizens. Instead, we offer several program options, such as a drug abuse education course or non-residential drug abuse treatment to inmates who have drug problems but who do not otherwise meet the admission criteria for the RDAP. These options are currently available for “non-U.S. citizen” inmates.

Comment: All inmates should be eligible for drug treatment.

Several commenters stated that inmates whose records and/or offenses of conviction show no elements of drug abuse should also be permitted to participate in drug treatment.

As noted in response to the previous comment, the Bureau does not deny drug abuse treatment to any inmates. We offer several program options, such as a drug abuse education course or non-residential drug abuse treatment to inmates who have drug problems, as provided in § 550.52, even if they do not meet the admission criteria for the RDAP.

With regard to eligibility for early release, however, as stated earlier, 18 U.S.C. 3621(e) only authorizes the Bureau to extend drug abuse treatment participation and eligibility for early release to inmates with “a substance abuse problem,” not to all inmates.

Because the early release is such a powerful incentive, as evidenced by over 5,000 inmates waiting to enter treatment, the Bureau must take appropriate measures to ensure that inmates requesting treatment actually have a substance abuse problem that can be verified with documentation. For those inmates who want treatment but do not have the requisite documentation to enter the RDAP, non-residential counseling services are available and encouraged.

Comment: Inmates eligible for up to a year of early release should have it taken from “time served.”

Three commenters felt that if inmates earn early release eligibility, the time should be taken from “time served.” While it is unclear from the comments, the Bureau interprets this to mean that the commenters believe that up to a year of early release should be taken from the total amount of time that the inmate has already served, including any time in custody before the date of sentencing. However, the Bureau is bound by statute in this regard. 18 U.S.C. 3621(e)(2)(B) provides that “[t]he period a prisoner convicted of a nonviolent offense remains in custody after successfully completing a treatment program may be reduced by the Bureau of Prisons, but such reduction may not be more than one year from the term the prisoner must otherwise serve.” In other words, the early release time must be taken from the term of sentence imposed.

Comment: Inmates who escape should be removed from RDAP.

One commenter felt that inmates who escape should be removed from RDAP. The same commenter also felt that staff should retain discretion to remove inmates who commit 100 series prohibited acts.

In the proposed rule, we proposed to delete language in § 550.53(g)(3) which requires the Drug Abuse Treatment Program Coordinator to remove an inmate automatically from RDAP if there is a finding by the Discipline Hearing Officer (DHO) that the inmate has committed a prohibited act involving alcohol, drugs, violence, escape, or any other 100-level series incident. As we stated in the proposed rule, removing the language would give the Bureau more latitude and clinical discretion when determining which inmates should be expelled from the program. The final rule retains this revised language. The Bureau will retain the ability to remove inmates if they commit a 100-level series incident, if, under the criteria in (g)(2), they are given at least one formal warning before removal or when the documented lack fo compliance with program standards is of such mangnitude that an inmate's continued presence would create an immediate and ongoing problem for staff and other inmates, but automatic expulsion due to commission of a 100-level prohibited act will not occur.

As stated above, because the automatic expulsion language is deleted, inmates will only be expelled from RDAP according to criteria in § 550.53(g)(1) which allows inmates to be removed from the program by the Drug Abuse Program Coordinator because of disruptive behavior related to the program or unsatisfactory progress in treatment, and requires at least one formal warning before removal, unless there is documented lack of compliance and the inmate's continued presence would present an immediate problem for staff and other inmates. Removing paragraph (g)(3) removes the automatic expulsion of inmates committing the listed prohibited acts and allows for greater possibility of continuance of the program for inmates with discipline problems.

Comment: Drug treatment specialists should have some skills in addiction treatment or addiction education.

One commenter felt that drug treatment specialists should be qualified in addiction treatment or education. As we stated in the preamble to the proposed rule, all of the treatment “specialists,” also known as “coordinators” in the Bureau have a doctorate degree in psychology. They are well qualified to use their knowledge of treatment and the behavior of individuals suffering from substance abuse to objectively determine if a participant is ready to complete the program.

Comment: Increase incentives for those who participate in drug treatment but are not eligible for early release.

Two commenters believed that the Bureau should increase the incentives that are available for inmates who participate in drug treatment but may not be eligible for early release. Currently, 28 CFR 550.54 describes possible incentives for RDAP participation, including limited financial awards, community-based treatment programs, preferred living quarters, special recognition privileges, achievement awards, and formal consideration for a nearer release transfer for medium and low security inmates. The Bureau believes the allowance of these incentives is adequate.

Comment: RDAP waiting lists are too long.

One commenter felt that inmate waiting lists for participation in RDAP treatment are too long. Currently, the Bureau has over 5,000 inmates waiting for residential treatment that is provided with limited Bureau resources. Inmates are selected for admission based on their proximity to release. Those nearest to release enter the program first. Using this method, we are able to ensure all inmates who qualify for the program, and volunteer to participate, are able to complete the program before their release from prison.

Comment: RDAP should be only 6 months instead of 9 months.

One commenter felt that the 9-month RDAP was “too long” and that the program should instead be no more than 6 months.

Research of prison drug treatment programs has shown a greater percentage of success in treatment if a unit-based component of the treatment lasts for nine to twelve months. One study found a strong relationship between time-in-program and treatment outcomes. Wexler, Falkin, & Lipton: Outcome Evaluation of A Prison Therapeutic Community for Substance Abuse Treatment. Criminal Justice and Behavior, Vol. 17 No. 1, March 1990. In this study, of the male inmates who participated in a drug treatment program, the percentage of those who had no parole violations during community supervision rose from 49 percent for those who remained less than three months to 77 percent for parolees who were in the program between nine and twelve months while in prison. Similar findings were obtained for females, although the percentage of those who had no parole violations was higher than for their male counterparts (79 percent for those who remained in treatment less than three months to the entire program and 92 percent for those who completed the nine- to twelve-month program). Additionally, the study also found that individuals who participate in a prison-based drug treatment for longer than twelve months do not have outcomes that are as successful as those who participated for nine to twelve months. An intensive residential treatment period between nine and twelve months near the end of an offender's sentence, coupled with individually tailored community transitional services program, may provide the best clinical outcomes and optimal resource utilization.

Also, the National Institute on Drug Abuse funded three large-scale National Treatment evaluations covering three decades, the 1970s, 1980s, and 1990s. Collectively, these studies—known as the Drug Abuse Reporting Program, the Treatment Outcome Prospective Study and the Drug Abuse Treatment Outcome Study, examined treatment performance and predictors of treatment outcomes for samples of 65,000 individuals admitted for drug abuse treatment. NIH Publication Number 02-4877, August 2002. This NIH Publication provides one of the most comprehensive overviews of the most salient research findings derived from the 250 publications. Findings from publications based on this research give broad support for the effectiveness of treatment, particularly for those with an adequate length of stay.

The Bureau's inmate population generally tends toward greater instances of addictive disorders, anti-social personality disorders, and other types of disorders, such as depression, anxiety, etc. These additional issues, which must be dealt with when treating an inmate's substance abuse problem, increase the difficulty of successfully treating an inmate within a six-month period. Although the Bureau makes specific treatment decisions for inmates on a case-by-case basis, based on the above research, and given the greater difficulty inherent in maintaining the success of drug treatment for inmates, we chose to require the unit-based component to be at least nine to twelve months to afford the greatest likelihood of success in treatment.

Comment: Staff should receive training regarding lesbian, gay, bisexual and transgender sensitivity issues.

One commenter stated that “[b]ecause [lesbian, gay, bisexual and transgender] LGBTQ people face additional challenges while incarcerated, from physical safety to accessing health care, we recommend that all treatment specialists receive cultural competency training to best address the needs of LGBTQ prisoners in RDAP.”

The Bureau agrees with this important concern. All Bureau staff receive training both at the start of their employment and annually regarding the Bureau's anti-discrimination policy, including cultural competency training to best address the needs of LGBTQ prisoners in RDAP. It is the policy of the Bureau of Prisons to “eliminate any internal policy, practice, or procedure that results in discrimination on the basis of race, color, sex, religion, national origin, age, physical or mental disability, genetic information, equal pay, pregnancy, retaliation, sexual orientation, gender identity, or status as a parent” Bureau of Prisons Anti-Discrimination Policy, PS 3713.25, June 16, 2014.

This regulation has been drafted and reviewed in accordance with Executive Order 12866, “Regulatory Planning and Review,” section 1(b), Principles of Regulation, and Executive Order 13563, “Improving Regulation and Regulatory Review.” These executive orders direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.

The Director, Bureau of Prisons has determined that this rule is a “significant regulatory action” under Executive Order 12866, section 3(f), and accordingly this rule has been reviewed by the Office of Management and Budget.

As context regarding the current impact of the RDAP (i.e., prior to the changes made in this rule), 18,102 inmates participated in the residential drug abuse treatment program in FY 2014. 18 U.S.C. 3621(e)(2) allows the Bureau to grant a non-violent offender up to one year off his/her term of imprisonment for successful completion of the RDAP. In FY 2014, 5,229 inmates received a reduction in their term of imprisonment resulting in a cost avoidance of nearly $50 million based on this law (average reduction was 10.4 months and the marginal cost avoidance was $10,994 annually). The changes made by this rule will likely increase the number of current inmates who benefit from the RDAP program and increase the number of inmates who may be eligible for early release, thereby resulting in cost avoidance to the Bureau in the future.

For instance, with regard to § 550.55(b)(6), changing “other offense” to “solicitation to commit,” based on prior year data (from 2014), we estimate that approximately 45 inmates would be made eligible for early release as a result of the changes made by this rule.

Since 2013, the Bureau was able to expand RDAP capacity due to increased funding through annual congressional budgeting processes. The Bureau will therefore not require more resources in order to put more individuals through RDAP. RDAP is a nine-month program. The program has a treatment capacity large enough to accommodate about 8,400 participants at any given time. This number also reflects inmates who may drop out of the program and are replaced with other inmates on the wait list. Therefore, during a 12-month period, program capacity is filled twice (8,400 inmates will complete one nine-month term, and another 8,400 inmates will begin a new nine-month term), which means that at least 16,800 participants can be included in the program in a given year.

This regulation would not have substantial direct effects on the States, on the relationship between the national government and the States, or on distribution of power and responsibilities among the various levels of government. Under Executive Order 13132, this rulemaking does not have sufficient federalism implications for which we would prepare a Federalism Assessment.

The Director of the Bureau of Prisons, under the Regulatory Flexibility Act (5 U.S.C. 605(b)), reviewed this regulation. By approving it, the Director certifies that it will not have a significant economic impact upon a substantial number of small entities because: This rule is about the correctional management of offenders committed to the custody of the Attorney General or the Director of the Bureau of Prisons, and its economic impact is limited to the Bureau's appropriated funds.

This rule will not cause State, local and tribal governments, or the private sector, to spend $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. We do not need to take action under the Unfunded Mandates Reform Act of 1995.

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

Accordingly, for the reasons set forth in the preamble, part 550 of title 28 of the Code of Federal Regulations is amended as follows:

TriMet Public Transit requested the upper deck of the Steel Bridge remain closed-to-navigation to accommodate the annual Starlight Parade event. The Steel Bridge crosses the Willamette River at mile 12.1 and is a double-deck lift bridge with a lower lift deck and an upper lift deck which operate independent of each other. When both decks are in the down position the bridge provides 26 feet of vertical clearance above Columbia River Datum 0.0. When the lower deck is in the up position the bridge provides 71 feet of vertical clearance above Columbia River Datum 0.0. The normal operating schedule for the Steel Bridge is in accordance with 33 CFR 117.897(c)(3)(ii). This deviation period is from 7 p.m. to 11:30 p.m. on June 4, 2016. The deviation allows the upper deck of the Steel Bridge to remain in the closed-to-navigation position and need not open for maritime traffic from 7 p.m. to 11:30 p.m. on June 4, 2016.

Waterway usage on this part of the Willamette River includes vessels ranging from commercial tug and barge to small pleasure craft. Vessels able to pass through the bridge in the closed positions may do so at anytime. The bridge will be able to open for emergencies, and there is no immediate alternate route for vessels to pass. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.

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

Norfolk Southern, the bridge owner that operates the #7 Railroad Bridge, has requested a temporary deviation from the current operating regulation to perform urgent repairs by changing the flat tracks across the north and south girders in two phases. The bridge is a single bascule span and has a vertical clearance in the closed position of seven feet above mean high water.

Under this temporary deviation, the bridge will remain in the closed-to-navigation position from 9 a.m. to 1 p.m. Monday through Thursday, April 25 to May 26, 2016; and from 9 a.m. to 1 p.m. Monday through Thursday, June 6 to June 9, 2016. At all other times, the bridge will operate in accordance with the operating regulations set out in 33 CFR 117.997(d).

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

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

The California Department of Transportation has requested a temporary change to the operation of the Highway 160 drawbridge, mile 0.1, over Three Mile Slough, at Rio Vista, CA. The drawbridge navigation span provides 12 feet vertical clearance above Mean High Water in the closed-to-navigation position. In accordance with 33 CFR 117.5, the draw opens on signal. Navigation on the waterway is commercial, search and rescue, law enforcement, and recreational.

The drawbridge will be secured in the closed-to-navigation position from 12:01 a.m. on April 18, 2016 to 11:59 p.m. on April 30, 2016, to allow the bridge owner to complete the necessary sand blasting and painting rehabilitation after unforeseen events have caused project delays. A containment scaffolding system has been installed below low steel of the entire length of the bridge structure, reducing vertical clearance for navigation by not more than 4 feet, and is lighted at night with red lights. This temporary deviation has been coordinated with the waterway users. No objections to the proposed temporary deviation were raised.

Vessels able to pass through the bridge in the closed position may do so at anytime. The bridge will not be able to open for emergencies. The confluence of the San Joaquin and Sacramento rivers can be used as an alternate route for vessels unable to pass through the bridge in the closed position. The Coast Guard will also inform waterway users through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.

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

Ground-level ozone is formed when nitrogen oxides (NOX) and volatile organic compounds (VOC) react in the presence of sunlight. Referred to as ozone precursors, these two pollutants are emitted by many types of pollution sources, including motor vehicles, power plants, industrial facilities, and area wide sources, such as consumer products and lawn and garden equipment. Scientific evidence indicates that adverse public health effects occur following a person's exposure to ozone. These effects are more pronounced in children and adults with lung disease. Breathing air containing ozone can reduce lung function and inflame airways, which can increase respiratory symptoms and aggravate asthma or other lung diseases. In 1979, in response to this scientific evidence, EPA promulgated the first ozone NAAQS, the 0.12 part per million (ppm) 1-hour ozone NAAQS. See 44 FR 8202 (February 8, 1979). EPA had previously promulgated a NAAQS for total photochemical oxidants.

On July 18, 1997, EPA promulgated a revised ozone NAAQS of 0.08 ppm, averaged over eight hours. 62 FR 38855. This standard was determined to be more protective of public health than the previous 1979 1-hour ozone standard. In 2008, EPA revised the 8-hour ozone NAAQS from 0.08 to 0.075 ppm. See 73 FR 16436 (March 27, 2008). On May 21, 2012, the Allentown-Bethlehem-Easton, Lancaster, Pittsburgh-Beaver Valley, Reading, and Philadelphia-Wilmington-Atlantic City areas were designated as marginal nonattainment for the more stringent 2008 8-hour ozone NAAQS. 77 FR 30088.

The Allentown-Bethlehem-Easton nonattainment area is comprised of Carbon, Lehigh, and Northampton Counties, all in Pennsylvania. Lancaster and Reading are single-county nonattainment areas, comprised of Lancaster County, Pennsylvania and Berks County, Pennsylvania, respectively. The Pittsburgh-Beaver Valley nonattainment area is comprised of Allegheny, Armstrong, Beaver, Butler, Fayette, Washington, and Westmoreland Counties, all in Pennsylvania. The Philadelphia-Wilmington-Atlantic City nonattainment areas includes Bucks, Chester, Delaware, Montgomery, and Philadelphia Counties in Pennsylvania, plus counties in Delaware, Maryland, and New Jersey. Under section 172(c)(3) of the CAA, Pennsylvania is required to submit comprehensive, accurate, and current inventories of actual emissions from all sources of the relevant pollutants in its marginal nonattainment areas, i.e., the Allentown-Bethlehem-Easton, Lancaster, Pittsburgh-Beaver Valley, and Reading nonattainment areas, and the Pennsylvania portion of the Philadelphia-Wilmington-Atlantic City nonattainment area.

On October 1, 2015, EPA strengthened the ground-level ozone NAAQS to 0.070 ppm, based on extensive scientific evidence about ozone's effects on public health and welfare. See 80 FR 65292 (October 26, 2015). As required by section 107(d) of the CAA, EPA intends to complete the initial designation process within two years of promulgation of the 2015 ozone NAAQS, i.e., no later than October 1, 2017. This rulemaking does not address the 2015 ozone NAAQS.

Under CAA section 172(c)(3), states are required to submit a comprehensive, accurate, current accounting of actual emissions from all sources (point, nonpoint, nonroad, and onroad) in the nonattainment area. CAA section 182(a)(1) requires that areas designated as nonattainment and classified as marginal are to submit an inventory of all sources of ozone precursors no later than 2 years after the effective date of designation. EPA's guidance for emissions inventory development calls for actual emissions to be used in the base year inventory. The state must report annual emissions as well as “summer day emissions.” As defined in 40 CFR 51.900(v), “summer day emissions” means, “an average day's emissions for a typical summer work weekday. The state will select the particular month(s) in summer and the day(s) in the work week to be represented.”

On September 30, 2015, the Pennsylvania Department of Environmental Protection (PADEP), submitted a SIP revision entitled, “2011 Base Year Inventory for the Pennsylvania Portion of Five 2008 Ozone Nonattainment Areas: Allentown-Bethlehem-Easton, Lancaster, Philadelphia-Wilmington-Atlantic City, Pittsburgh-Beaver Valley, Reading.” PADEP selected 2011 as its base year for SIP planning purposes, as recommended in EPA's final rule, “Implementation of the 2008 National Ambient Air Quality Standards for Ozone: State Implementation Plan Requirements.” 80 FR 12263 (March 6, 2015). PADEP's 2011 base year inventories include emissions estimates covering the general source categories of stationary point, stationary nonpoint, nonroad mobile, and onroad mobile. In its 2011 base year inventories, PADEP reported actual annual emissions and typical summer day emissions for the months of May through September for NOX, VOC, and carbon monoxide (CO).

Tables 1 through 5 summarize the 2011 VOC, NOX, and CO emission inventory by source sector for Pennsylvania's five marginal nonattainment areas. Annual emissions are given in tons per year (tpy), and summer weekday emissions are given in tons per day (tpd).

Point sources are large, stationary, identifiable sources of emissions that release pollutants into the atmosphere. Pennsylvania obtained its point source data from the Pennsylvania Air Information Management System (AIMS). PADEP regional offices identify and inventory stationary sources for AIMS through inspections, surveys, and permitting. Inventory data for point sources in Allegheny and Philadelphia Counties was developed by the Allegheny County Health Department (ACHD) and the Philadelphia Air Management Services (AMS), respectively. ACHD and AMS provided their point source data to PADEP and also submitted it to EPA for the National Emission Inventory (NEI).

Nonpoint sources, also known as area sources, are sources of pollution that are small and numerous, and that have not been inventoried as specific point or mobile sources. To inventory these sources, they are grouped so that emissions can be estimated collectively using one methodology. Examples are residential heating emissions and consumer solvents. PADEP calculated nonpoint emissions for each county by multiplying emissions factors specific for each source category with some known indicator of collective activity for each source category, such as population or employment data.

Nonroad sources are mobile sources other than onroad vehicles, including aircraft, locomotives, construction and agricultural equipment, and marine vessels. Emissions from different source categories are calculated using various methodologies. PADEP relied on EPA's nonroad emissions calculations, from the 2011 NEI, version 1. Onroad or highway sources are vehicles, such as cars, trucks, and buses, which are operated on public roadways. PADEP estimated highway emissions using EPA's Motor Vehicle Emission Simulator (MOVES) model, version 2010b.

EPA reviewed Pennsylvania's 2011 base year emission inventories' results, procedures, and methodologies for the Allentown-Bethlehem-Easton, Lancaster, Pittsburgh-Beaver Valley, and Reading nonattainment areas and the Pennsylvania portion of the Philadelphia-Wilmington-Atlantic City nonattainment area and found them to be acceptable and approvable. EPA's review is detailed in two Technical Support Documents (TSD) prepared for this rulemaking, the January 7, 2016 “Technical Support Document (TSD) for the 2011 Base Year Inventory for Areas of Marginal Nonattainment of the 2008 Ozone NAAQS in Pennsylvania” and the January 21, 2016, “Technical Support Document (TSD)—Review of the On-Road Portion of the 2011 Base Year Inventories for the Pennsylvania Portion of the Following Five 2008 8-Hour Ozone National Ambient Air Quality Standard (NAAQS) Nonattainment Areas: Allentown-Bethlehem-Easton, Lancaster, Philadelphia-Wilmington-Atlantic City, Pittsburgh-Beaver Valley, and Reading.” These TSDs are available on line at http://www.regulations.gov, Docket ID No. EPA-R03-OAR-2016-0002.

EPA is approving the 2011 base year inventories for the 2008 8-hour ozone NAAQS for the Allentown-Bethlehem-Easton, Lancaster, Pittsburgh-Beaver Valley, and Reading nonattainment areas, and the Pennsylvania portion of the Philadelphia-Wilmington-Atlantic City nonattainment area because the inventories were prepared in accordance with requirements in sections 172(c)(3) and 182(a) of the CAA and its implementing regulations including 40 CFR 51.915. EPA is publishing this rule without prior proposal because EPA views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on June 27, 2016 without further notice unless EPA receives adverse comment by May 26, 2016. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

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

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

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

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

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

• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, 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).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not 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 June 27, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking action.

This action approving Pennsylvania's 2011 base year inventories for the 2008 8-hour ozone NAAQS for the Allentown-Bethlehem-Easton, Lancaster, Pittsburgh-Beaver Valley, and Reading nonattainment areas, and the Pennsylvania portion of the Philadelphia-Wilmington-Atlantic City nonattainment area may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

40 CFR part 52 is amended as follows:

On June 22, 2010 (75 FR 35520), EPA revised the primary SO2 NAAQS to an hourly standard of 75 parts per billion (ppb) based on a 3-year average of the annual 99th percentile of 1-hour daily maximum concentrations. Pursuant to section 110(a)(1) of the CAA, states are required to submit SIPs meeting the applicable requirements of section 110(a)(2) within three years after promulgation of a new or revised NAAQS or within such shorter period as EPA may prescribe. Section 110(a)(2) requires states to address basic SIP elements such as requirements for monitoring, basic program requirements and legal authority that are designed to assure attainment and maintenance of the NAAQS. States were required to submit such SIPs for the 2010 1-hour SO2 NAAQS to EPA no later than June 2, 2013.1

In a proposed rulemaking published on February 25, 2016, EPA proposed to approve North Carolina's 2010 1-hour SO2 NAAQS infrastructure SIP submission submitted on March 18, 2014, with the exception of the PSD permitting requirements for major sources of section 110(a)(2)(C) and (J), the interstate transport requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1 through 4), and state boards requirements of section 110(a)(2)(E)(ii).2  See 81 FR 9398. The details of North Carolina's submission and the rationale for EPA's actions are explained in the proposed rulemaking. Comments on the proposed rulemaking were due on or before March 28, 2016. EPA received no comments on the proposed action.

With the exception of the PSD permitting requirements for major sources of section 110(a)(2)(C) and (J), the interstate transport requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1 through 4), and state boards requirements of section 110(a)(2)(E)(ii), EPA is taking final action to approve North Carolina's infrastructure submission submitted on March 18, 2014, for the 2010 1-hour SO2 NAAQS. EPA is taking final action to approve portions of North Carolina's infrastructure SIP submission for the 2010 1-hour SO2 NAAQS because the submission is consistent with section 110 of the CAA.

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 27, 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:

EPA is publishing this rule without a prior proposed rule because we view this as a noncontroversial action and anticipate no adverse comment as this final rule amends the EPAAR to add a new solicitation provision and contract clause for iDURC Policy compliance. The iDURC policy was already published in the Federal Register for comment on September 25, 2014. If EPA receives adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. Any parties interested in commenting must do so at this time.

The EPA is promulgating a solicitation provision and contract clause to implement the iDURC Policy. The solicitation provision and contract clause notify institutions of the need to comply, and to ensure that institutions subject to the iDURC Policy represent that they shall comply with the iDURC Policy prior to or upon contract award. Institutions within the United States that receive funding from EPA to conduct or sponsor life sciences research are subject to the iDURC Policy if they conduct or sponsor research involving any of the agents or toxins listed in the iDURC Policy, regardless of the funding source. Institutions outside of the United States are subject to the iDURC Policy if they receive funding from EPA to conduct or sponsor research with any agents or toxins listed in the iDURC Policy. Institutions that are subject to the iDURC Policy have a number of responsibilities—at a minimum, they are advised to train laboratory personnel involved in such projects and maintain records of that training, establish an institutional review process to assess the research for its potential to meet the definition of dual use research of concern, and if it meets the definition, ensure the research is conducted and communicated responsibly.

A. Do not submit CBI to EPA through the Web site http://www.regulations.gov or by email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI, and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

B. Tips for Preparing Your Comments. When submitting comments, see the commenting tips at: http://www2.epa.gov/dockets/commenting-epa-dockets and remember to:

• Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number).

• Follow directions—The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) Part or section number.

• Explain why you agree or disagree, suggest alternatives, and substitute language for your requested changes.

• Describe any assumptions and provide any technical information and/or data that you used.

• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

• Provide specific examples to illustrate your concerns, and suggest alternatives.

• Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

C. Make sure to submit your comments by the comment period deadline identified.

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

The information collection activities in this rule have been submitted for approval to the Office of Management and Budget (OMB) under the PRA. The Information Collection Request (ICR) document that the EPA prepared has been assigned EPA ICR number 2530.01. You can find a copy of the ICR in the docket for this rule, and it is briefly summarized here. The information collection requirements are not enforceable until OMB approves them.

The iDURC Policy instructs institutions subject to the Policy train individuals within their institution that are conducting research involving any of the agents or toxins identified in the Policy. Additionally, institutions are to maintain records of that training. EPA is submitting an information collection request for these recordkeeping requirements. EPA may collect the training records to ensure EPA is in compliance with the Policy, and that institutions receiving EPA funding are appropriately complying as well. EPA does not expect any issues of confidentiality to be relevant to this information collection.

Respondents/affected entities: Private Industry; Federal Government (in the form of government-owned/contractor-operated laboratories).

Respondent's obligation to respond: Mandatory (48 CFR Chapter 15, Part 52 and Part 35).

Estimated number of respondents: 12 to 24.

Frequency of response: Only once, or as necessary.

Total estimated burden: 36 to 64 hours per year.

Total estimated cost: $1,440 to $4,320.

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

This action is not subject to the RFA. The RFA applies only to rules subject to notice and comment rulemaking requirements under the Administrative Procedure Act (APA), 5 U.S.C. 553, or any other statute. This rule pertains to contracts, which the APA expressly exempts from notice and comment rulemaking requirements under 5 U.S.C. 553(a)(2).

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

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

This action does not have tribal implications, as specified in Executive Order 13175. No substantial compliance costs are expected. There will be no impact 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. Thus, Executive Order 13175 does not apply to this action.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.

This action is not subject to Executive Order 13211 (66 FR 28335 (May 22, 2001), because it is not a significant regulatory action under Executive Order 12866.

This action does not involve technical standards.

EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment in the general public.

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

For the reasons stated in the preamble, 48 CFR parts 1535 and 1552 are amended as set forth below:

As part NASA's retrospective review of existing regulations, NASA is conducting periodic reviews of NASA FAR Supplement (NFS) to ensure the accuracy of information and guidance disseminated to the acquisition community This rule corrects typographical errors as well as inadvertent omissions from past rulemaking actions. A summary of changes follows:

• Section 1815.408-70(c) is revised to correct a typographical error.

• Subpart 1842.70 is revised to reinsert sections 1842.7002 and 1842.7003 inadvertently removed by amendatory instruction 2 of final rule 80 FR 52644 issued on September 1, 2015.

• Sections 1852.215-79, 1852.217-72, 1852.223-73 (ALTERNATE I), 1852.223-75, 1852.227-88, 1852.228-71, 1852.239-70, 1852.245-73, 1852.245-82, 1852.245-83, 1852.246-73 are revised to correct their prescription references.

Accordingly, 48 CFR parts 1815, 1842, and 1852 are amended as follows:

On December 28, 2015, NMFS published a proposed rule in the Federal Register (80 FR 80741) to implement IATTC Recommendation C-12-11 (IATTC—WCPFC Overlap Area); the IATTC adopted this Recommendation at its 84th meeting in October 2012. The convention areas for the IATTC and WCPFC overlap in the Pacific Ocean waters within a rectangular area bounded by 50° S. latitude, 150° W. longitude, 130° W. longitude, and 4° S. latitude (“Area of Overlap”). Recommendation C-12-11 calls for each flag State member, if it is a member of both organizations, to decide, for a period of not less than 3 years, whether IATTC or WCPFC conservation and management measures will apply to vessels listed in the registers of both organizations while fishing in the Area of Overlap. The proposed rule contained additional background information, including information on the IATTC, the international obligations of the United States as an IATTC member, and the need for regulations. The 30-day public comment period for the proposed rule closed on January 27, 2016.

Prior to this rule, both the U.S. regulations that implement the decisions of the IATTC (see 50 CFR part 300, subpart C) and the regulations that implement the decisions of the WCPFC (see 50 CFR part 300, subpart O) applied in the Area of Overlap. This rule implements Recommendation C-12-11 and establishes that, in the Area of Overlap, the regulations that implement the decisions of the IATTC at 50 CFR part 300, subpart C, do not apply; however, regulations pertaining to the IATTC Regional Vessel Register at 50 CFR 300.22(b) still apply.

The decisions of the WCPFC as implemented by NMFS regulations at 50 CFR part 300, subpart O would continue to apply in the Area of Overlap. Under this rule, the definition of the IATTC Convention Area is revised into two parts: (1) Include the Area of Overlap in the definition of the IATTC Convention Area for the purpose of IATTC Regional Vessel Register regulations at 50 CFR 300.22(b), and (2) exclude the Area of Overlap in the definition of the Convention Area for the purpose of regulations at 50 CFR part 300, subpart C.

The final rule is implemented under the authority of the Tuna Conventions Act (16 U.S.C. 951 et seq.), as amended on November 5, 2015, by title II of Public Law 114-81. The recent amendments provide that the Secretary of Commerce, in consultation with the Secretary of State and, with respect to enforcement measures, the Secretary of the Department of Homeland Security, may promulgate such regulations as may be necessary to carry out U.S. international obligations under the Convention, including recommendations and decisions adopted by the IATTC. The Secretary's authority to promulgate such regulations has been delegated to NMFS.

NMFS notes that on January 29, 2016, after publication of the proposed rule, the United States deposited a formal notice of intent to withdraw from the Treaty on Fisheries between the Governments of Certain Pacific Island States and the Government of the United States of America (aka the South Pacific Tuna Treaty or SPTT). The SPTT entered into force in 1988, and provides for the establishment of terms and conditions for the U.S. tuna purse seine fleet to fish in certain areas of the Western and Central Pacific Ocean (WCPO), including waters under the jurisdiction of the Pacific Island Parties to the SPTT. A small part of the SPTT Convention Area is in the Overlap Zone; fishing vessels of the United States operating in the SPTT Convention Area are subject to 50 CFR part 300, subpart D. The SPTT will terminate 1 year from the receipt of the deposit of the formal notice of withdrawal unless the United States rescinds the notice. Due in part to uncertainty regarding fishing access pursuant to the SPTT in 2016, 15 large purse seine vessels (>362.8 metric ton well volume) that typically fish in the WCPO requested to be added to the IATTC Regional Vessel Register for fishing access in the EPO. Consequently, the combined well volume capacity of all U.S. purse seine vessels is 29,390 m3, which is close to the 31,775 m3 limit for the United States.

NMFS received one comment letter during the 30-day public comment period that closed on January 27, 2016. At the time the comment letter was received, no SPTT licenses had been issued to U.S. vessels for 2016. On February 29, 2016, the Pacific Island Parties to the SPTT and the United States finalized revised terms of access to waters under the jurisdiction of the Pacific Island parties for 2016. The comment letter included references to the situation with the SPTT, as described above, and the distribution of fishing effort of U.S. purse seine vessels between the WCPO and EPO. The concerns expressed in the comment letter were separated into three comments, which NMFS responds to below.

Comment 1: Recently, the fishing effort of much of the American Samoan fleet has shifted from the WCPFC to the IATTC Convention Area; therefore, the commenter opposes this proposed rule to apply WCPFC regulations to the Area of Overlap instead of IATTC regulations. Due to the lack of SPTT licenses, the U.S. purse seine fleet has been prohibited from fishing in the SPTT Licensing Area and 15 U.S. flagged purse seiners are utilizing their historical rights to fish in the IATTC Convention Area. Because these vessels would now be following IATTC regulations, the statement made to support the proposed rule is no longer accurate: “. . . the U.S. fisheries impacted by this rulemaking occur mostly in the WCPFC Area.”

Response: As described in the preamble, NMFS recognizes that this has been an unusual year for the U.S purse seine fleet fishing under the SPTT and that there has been uncertainty in the structure and future of the SPTT. At the time the proposed rule published, no SPTT licenses had been issued to U.S. vessels for 2016, and large purse seine vessels that typically fish in the WCPO requested to be added to the IATTC Regional Vessel Register for fishing access in the EPO. However, on February 29, 2016, the Pacific Island parties and the United States finalized revised terms of access for 2016. While the future of the SPTT remains uncertain, U.S. purse seine vessels have been issued SPTT licenses for 2016 as of the date of publication of this final rule.

Due to the uncertainty in the future of the SPTT and the terms of fishing access to waters under the jurisdiction of Pacific Island parties for U.S. purse seine vessels in the future, NMFS intends to apply these regulations for 3 years, and may re-evaluate the location of fishing effort between the EPO and WCPO after that time to consider any substantial changes in the fisheries. In the event that the SPTT does terminate, owners of U.S. purse seine vessels may be able to obtain authorization from Pacific Island nations to fish in waters under their jurisdiction through alternative arrangements.

Although Comment 1 references that the fishing effort of 15 purse seine vessels recently changed from the WCPO to the EPO, NMFS evaluated the impacts of the rule by reviewing all U.S. fishing activity in the Area of Overlap, including other gear types outside of the purse seine fleet. As described in the Classification section of the proposed rule, U.S. vessels do not fish in the Area of Overlap often. The two gear types that have fished in the Area of Overlap since 2008 are troll vessels that target South Pacific albacore and purse seine vessels that target tropical tuna. The majority of the South Pacific albacore troll fishery occurs in the WCPFC Convention Area outside the Area of Overlap (i.e., west of 150° W.), while some fishing has occurred in the Area of Overlap. As described above, the well volume capacity on the IATTC Regional Vessel Register for 2016 is nearly at the U.S. limit with 15 large purse seine vessels. There are currently 27 large purse seine vessels that are authorized by NMFS to be used for fishing on the high seas in the WCPFC Convention Area that are not on the IATTC Regional Vessel Register and these vessels will not be able to fish full time in the EPO for 2016. In addition, although U.S. longline vessels have not fished in the Area of Overlap over the past 10 years, this fleet also primarily fishes in the WCPO. This rule applies to vessels of all gear types.

Comment 2: IATTC decisions governing the IATTC Regional Vessel Registry and Agreement on the International Dolphin Conservation Program (AIDCP) should not apply in the Area of Overlap, including vessel assessment fees, observer coverage, and authorization for the active status of purse seine vessels. NMFS is proposing that vessels fishing in the Overlap Area pay IATTC fees, follow some IATTC rules, but also abide by all WCPFC rules.

Response: The decisions of the AIDCP must continue to apply regardless of the way IATTC Recommendation C-12-11 is implemented through this rulemaking. As explained in the preamble of the proposed rule, the IATTC Regional Vessel Register regulations must continue to apply to U.S. vessels in the Area of Overlap so that the United States can continue to fulfill its obligations under the AIDCP in that area. The decisions of the IATTC cannot undo the decisions of the AIDCP without consensus from the AIDCP because these organizations are established under separate treaties. The IATTC Regional Vessel Register is used as a mechanism to implement AIDCP provisions, including vessel assessment fees, observer coverage, and authorization for the active status of purse seine vessels. Therefore, the IATTC Regional Vessel Register requirements, including the requirement to pay vessel assessment fees required under the AIDCP will continue to apply in the Area of Overlap.

Comment 3: This proposed rule runs counter to its stated intent to simplify regulations in a way consistent with one Commission or the other, nor is it reflective of current status of the fishery. It applies a historical rather than forward looking rationale and, therefore, fails to account for changes clearly occurring and likely to occur in future fishing patterns. U.S. vessels fishing in the EPO should follow IATTC regulations exclusively in the Area of Overlap and not those of the WCPFC.

Response: NMFS disagrees that this rule would not simplify the regulations to be followed in the Area of Overlap. As described in the Classification section of the proposed rule, the rule is expected to simplify regulations because, aside from the IATTC Regional Vessel Register requirements, affected vessels will only be required to follow the measures of one organization (i.e., the WCPFC) rather than both organizations (i.e., the WCPFC and the IATTC) in the Area of Overlap. For example, in 2015 purse seine vessel owners and operators needed to comply with closures applicable in the Area of Overlap for both the IATTC and WCPFC. The IATTC implementing regulations at § 300.25(f) require vessel owners and operators to select one of two options for 62-day closures in the IATTC Convention Area. In addition, purse seine vessel owners and operators needed to comply with WCPFC regulations at § 300.223(a) that established a limit of 1,828 purse seine fishing days in the WCPFC Convention Area in the areas of high seas and U.S. EEZ between 20° N. latitude and 20° S. latitude (an area known as the ELAPS), which includes some of the Area of Overlap. The limit was reached and the applicable area was closed to purse seine fishing from June 15, 2015, through December 31, 2015 (80 FR 32313). Under this rule, vessel owners and operators would not need to comply with both sets of purse seine closures in the Area of Overlap, and would only need to comply with the WCPFC limit on fishing days in the ELAPS.

Comment 3 also states that the rule “. . . applies a historical rather than forward looking rationale and therefore fails to account for changes clearly occurring and likely to occur in future fishing patterns. . . .” As described in the response to Comment 1, NMFS cannot speculate on the outcome of the SPTT negotiations or future fishing grounds of the purse seine fleet, and can only evaluate the information that is currently available. Furthermore, NMFS cannot predict other changes that may occur in future fishing patterns outside of the SPTT. For example, changes in regional fisheries management organization measures in the future could lead to more or less restrictive measures for fleets that would require more or less burden in the Area of Overlap. Given that the majority of the U.S. fleet that has utilized the Area of Overlap in the past eight years has fished predominantly in the WCPO, NMFS still considers the decisions of the WCPFC to be the more uniform set of regulations for the U.S. fleet to follow when in the Area of Overlap. Moreover, NMFS may re-evaluate the location of fishing effort between the EPO and WCPO three years from now to consider revising this rule in light of any substantial changes in the fisheries.

There are no changes in the regulatory text between the proposed and final rule.

The NMFS Assistant Administrator has determined that this rule is consistent with the Tuna Conventions Act and other applicable laws.

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

Additionally, although there are no new collection-of-information requirements associated with this action that are subject to the Paperwork Reduction Act, existing collection-of-information requirements still apply under the following Control Numbers: (1) 0648-0596, Vessel Monitoring System (VMS) Requirements under the WCPFC; (2) 0648-0595, WCPFC Vessel Information Family of Forms; (3) 0648-0649, Transshipment Requirements under the WPCFC; and (4) 0648-0204, West Coast Region Family of Forms. Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection-of-information subject to the requirements of the PRA, unless that collection-of-information displays a currently valid OMB control number.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding the certification. Therefore, the certification published with the proposed rule that states this rule is not expected to have a significant economic impact on a substantial number of small entities is still valid. As a result, a regulatory flexibility analysis was not required and none was prepared.

For the reasons set out in the preamble, 50 CFR part 300 is amended as follows:

Specifications, as referred to in this rule, are the combined suite of commercial and recreational catch levels established for one or more fishing years. The specifications process also allows for the modification of a select number of management measures, such as closure thresholds, gear restrictions, and possession limits. The Council's process for establishing specifications relies on provisions within the Atlantic Mackerel, Squid, and Butterfish Fishery Management Plan (FMP) and its implementing regulations, as well as requirements established by the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Specifically, section 302(g)(1)(B) of the Magnuson-Stevens Act states that the Scientific and Statistical Committee (SSC) for each Regional Fishery Management Council shall provide its Council ongoing scientific advice for fishery management decisions, including recommendations for acceptable biological catch (ABC), preventing overfishing, maximum sustainable yield, and achieving rebuilding targets. The ABC is a level of catch that accounts for the scientific uncertainty in the estimate of the stock's defined overfishing level (OFL).

The Council's SSC met on May 13 and 14, 2015, to recommend an ABC for the 2016-2018 Atlantic mackerel specifications. On January 22, 2016, NMFS published a proposed rule for the 2016-2018 Atlantic mackerel, squid, and butterfish fishery specifications and management measures (81 FR 3768); the public comment period for the proposed rule ended February 22, 2016. NMFS previously set specifications for butterfish, longfin squid, and Illex squid for 3 years in 2015 (2015-2017) (80 FR 14870, March 20, 2015) and, therefore, new specifications for these species are not included in this final rule.

The Atlantic Mackerel, Squid, and Butterfish FMP regulations require the specification of annual catch limits (ACL) and accountability measures (AM) for Atlantic mackerel and butterfish. (Both squid species are exempt from the ACL/AM requirements because they have life cycles of less than 1 year.) In addition, the regulations require the specification of domestic annual harvest (DAH), domestic annual processing (DAP), and total allowable level of foreign fishing (TALFF), along with joint venture processing (JVP) for commercial and recreational annual catch totals (ACT) for mackerel, the butterfish mortality cap in the longfin squid fishery, and initial optimum yield (IOY) for both squid species. Details concerning the Council's development of the measures were presented in the preamble of the proposed rule and are not repeated here.

In addition to the specifications, this action adjusts the butterfish mesh requirement, clarifies the use of net strengtheners in the butterfish fishery, and suspends indefinitely the pre-trip notification system (PTNS) requirements in the longfin squid fishery.

The proposed rule for this action included the details of how the Council derived its recommended Atlantic mackerel specifications, and NMFS is not including these details in this final rule. This action establishes the Atlantic mackerel stock-wide ABC of 19,898 mt and the U.S. ABC of 11,009 mt, based on the formula U.S. ABC = Stock-wide ABC-C, where C is the estimated catch of Atlantic mackerel in Canadian waters (8,889 mt) for the upcoming fishing year. The ACL is set equal to the U.S. ABC at 11,009 mt, the commercial ACT is set at 9,294 mt, the DAH and DAP are both set at 9,177 mt, and the recreational ACT is set at 614 mt.

The recreational fishery allocation for Atlantic mackerel is 683 mt (6.2 percent of the U.S ABC). The recreational ACT of 614 mt (90 percent of 683 mt) accounts for uncertainty in recreational catch and discard estimates. The recreational ACT is equal to the Recreational Harvest Limit (RHL), which is the effective cap on recreational catch.

The commercial fishery allocation for Atlantic mackerel is 10,327 mt (93.8 percent of the U.S. ABC, the portion of the ACL that was not allocated to the recreational fishery). The commercial ACT of 9,294 mt (90 percent of 10,327 mt) compensates for management uncertainty in estimated Canadian landings, uncertainty in discard estimates, and possible misreporting of Atlantic mackerel catch. The commercial ACT is further reduced by a discard rate of 1.26 percent to arrive at the DAH of 9,177 mt. The DAH is the effective cap on commercial catch.

Additionally, this action maintains JVP at zero (the most recent allocation was 5,000 mt of JVP in 2004). In the past, JVP was set greater than zero because U.S. processors lacked the ability to process the total amount of Atlantic mackerel that U.S. harvesters could land. However, for the past 10 years, the Council has recommended zero JVP because U.S. shoreside processing capacity for Atlantic mackerel has expanded. The Council concluded that processing capacity was no longer a limiting factor relative to domestic production of Atlantic mackerel.

The Magnuson-Stevens Act provides that the specification of TALFF, if any, shall be the portion of the optimum yield (OY) of a fishery that will not be harvested by U.S. vessels. TALFF would allow foreign vessels to harvest U.S fish and sell their product on the world market, in direct competition with U.S. industry efforts to expand exports. While a surplus existed between ABC and the Atlantic mackerel fleet's harvesting capacity for many years, that surplus has disappeared due to downward adjustment of the specifications in recent years. Based on analysis of the global mackerel market and possible increases in U.S. production levels, the Council concluded that specifying a DAH/DAP that would result in zero TALFF would yield positive social and economic benefits to both U.S. harvesters and processors, and to the Nation. For these reasons, consistent with the Council's recommendation, the DAH is set at a level that can be fully harvested by the domestic fleet, thereby precluding the specification of a TALFF, in order to support the U.S. mackerel industry. NMFS concurs that it is reasonable to assume that in 2016 through 2018 the commercial fishery has the ability to harvest 9,177 mt of Atlantic mackerel.

In order to limit river herring and shad catch, Amendment 14 to the FMP (February 24, 2014; 79 FR 10029) allows the Council to set a river herring and shad cap through annual specifications. For 2015, we implemented a cap that was set at 89 mt initially, but if Atlantic mackerel landings surpassed 10,000 mt before closure of the directed fishery, then the cap would increase to 155 mt. The 89-mt cap represents the median annual river herring and shad catch by all vessels landing over 20,000 lb (9.08 mt) of Atlantic mackerel per trip from 2005-2012. These were the years when the fishery caught about 13,000 mt of Atlantic mackerel. The 155-mt cap was based on the median river herring and shad catch by all vessels landing over 20,000 lb (9.08 mt) of Atlantic mackerel per trip from 2005-2012, adjusted to the 2015 DAH (20,872 mt). This two-tier system was implemented to encourage the fishery to avoid river herring and shad regardless of the rate of Atlantic mackerel catches.

For 2016-2018, the cap is set at 82 mt. For 2016-2018, the Atlantic mackerel DAH is 9,177 mt, which is 8.23 percent less than the river herring and shad catch cap increase trigger set in 2015 (10,000 mt). The river herring and shad cap was reduced by the same proportion as the catch cap increase trigger, resulting in a cap of 82 mt (8.23 percent less than 89 mt). Once the Atlantic mackerel fishery catches 95 percent of the river herring and shad cap, we will close the directed Atlantic mackerel fishery and implement a 20,000-lb (9.08-mt) Atlantic mackerel incidental catch trip limit for the remainder of the year.

This action will increase the possession limit for vessels fishing with mesh smaller than 3 inches (7.62 cm) from 2,500 lb (1.13 mt) to 5,000 lb (2.27 mt). The 3-inch (7.62-cm) mesh requirement is designed to allow escapement of juvenile butterfish during directed butterfish fishing. Vessels holding a longfin squid and butterfish moratorium permit and fishing with nets that have a mesh size smaller than 3 inches (7.62 cm) will now be allowed to retain up to 5,000 lb (2.27 mt) of butterfish.

This action also amends the regulations to clearly state that 5-inch (12.7-cm) square or diamond, or greater, mesh net strengtheners may be used outside the 3-inch (7.62-cm) mesh to avoid breaking nets during large hauls.

This action will indefinitely suspend the longfin squid PTNS requirement for vessels with longfin squid and butterfish moratorium permits that want to retain more than 2,500 lb (1.13 mt) of longfin squid. This requirement was implemented via Amendment 10 to the FMP (75 FR 11441; March 11, 2010) to improve the selection process of vessels being observed for purposes of monitoring the longfin squid fishery's butterfish cap. However, the new Standardized Bycatch Reporting Methodology (SBRM) requires observers to adhere to a detailed and rigorous selection procedure that takes into account a variety of criteria (for example region fished and gear used) to select vessels for observer coverage, and that conflicts with the use of the PTNS for assigning observers. This action will resolve the resulting logistical problems by relying on observer coverage through the new SBRM, and eliminating the PTNS requirement.

NMFS received five comments in response to the proposed rule for this action. Two were from industry groups, the Garden State Seafood Association (GSSA), a New Jersey fishing industry advocacy group, and Seafreeze, a Rhode Island fishing company and seafood dealer. One comment was from the Herring Alliance, an environmental group. Two comments were from individuals.

Comment 1: GSSA, Seafreeze, and two individuals commented in support of removing the longfin squid PTNS requirement. GSSA, Seafreeze, and one individual commented in support of the increased butterfish incidental possession limit to 5,000 lb (2.27 mt) using less than 3-inch (7.62-cm) mesh. GSSA and Seafreeze also commented in support of allowing 5-inch (12.7-cm) mesh net strengtheners to avoid breaking nets during large hauls.

Response: NMFS will be implementing these management measures as proposed.

Comment 2: GSSA commented in opposition to the river herring and shad catch cap of 82 mt while the Herring Alliance commented in support of the catch cap.

Response: There was no rationale provided for the opposition to the proposed river herring and shad catch cap of 82 mt. NMFS used the best scientific information available and is approving the river herring and shad catch cap that is consistent with the FMP and recommendations of the Council.

Comment 3: The Herring Alliance commented in support of the Atlantic mackerel DAH of 9,177 mt.

Response: NMFS used the best scientific information available and is approving the specifications that are consistent with the FMP and recommendations of the Council.

Comment 4: One individual suggested that the daily vessel monitoring system (VMS) reporting requirement for longfin squid vessels be removed or reduced. The Herring Alliance suggested that an amendment be initiated to develop a long-term control rule for Atlantic mackerel that will be consistent with the Council's policies for forage fish. The Herring Alliance also suggested that all four river herring and shad species be added to the Atlantic Mackerel, Squid, and Butterfish FMP as stocks in the fishery in October 2016.

Response: These issues are outside the scope of this action, but may be addressed by the Council in the future.

This final rule contains a change that will clarify that only vessels intending to land more than 2,500 lb (1.13 mt) of longfin squid are required to declare into the fishery via VMS at 50 CFR§ 648.10. The fishery is already operating this way; this rule is simply clarifying the existing regulatory text.

This final rule also contains changes to the wording and format of the regulatory text of the proposed rule for the measures included in this action to reorganize paragraphs (3) through (6) in 50 CFR 648.23, and to make conforming and clarifying edits and format changes to 50 CFR 648.23. These changes are intended to clarify the purpose of these measures and promote compliance, and do not change the effect of the regulatory text as included in the proposed rule.

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator (AA) has determined that this final rule is consistent with the Atlantic Mackerel, Squid, and Butterfish FMP, other provisions of the Magnuson-Stevens Act, and other applicable law.

The Council prepared an EA for the 2016-2018 specifications and management measures, and the AA concluded that there will be no significant impact on the human environment as a result of this rule. A copy of the EA is available upon request (see ADDRESSES).

This final rule is authorized by 50 CFR part 648 and has been determined to be not significant for purposes of Executive Order 12866.

The AA finds good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay of effectiveness period for part of this rule (revising 50 CFR 648.11(n)(1) on pre-trip notification for observer coverage), to alleviate unnecessary burden to the public. This aspect of the final rule indefinitely suspends the requirement that longfin squid and butterfish moratorium permit-holders must use the PTNS before making trips that can land more than 2,500 lb of longfin squid. New observer selection protocols through the SBRM have made the PTNS unnecessary and potentially counterproductive. If a 30-day delay in effectiveness is not waived in order to make the suspension of the PTNS requirement effective as soon as possible, the public will be further burdened by this unnecessary requirement. For these reasons, the AA is waiving the 30-day delay in effectiveness under 5 U.S.C. 553(d)(3).

This rule is being issued at the earliest possible date. Preparation of the proposed rule was dependent on the submission of the EA/IRFA in support of the specifications and management measures developed by the Council. NMFS received a complete document in December 2015. Documentation in support of the Council's recommended specifications and management measures are required for NMFS to provide the public with information from the environmental and economic analyses as required by the National Environmental Protection Act and the Regulatory Flexibility Act. The proposed rule was published on January 22, 2016, with a comment period ending on February 22, 2016.

This action contains collection-of-information requirements subject to the paperwork Reduction Act (PRA) and which has been approved by OMB under control number 0648-0679. This action indefinitely suspends the PTNS requirement for limited access longfin squid vessels. The removal of this information collection is intended to resolve logistical problems and conflicts with the SBRM observer selection protocols. The burden estimates for these new requirements apply to all limited access longfin squid vessels. Time and cost burdens that were previously approved through Amendment 10 and OMB Control Number 0648-0679, include an estimated total time burden of 256 hours, no additional cost to the public, and total cost to the government of $25,943. In a given fishing year, NMFS estimates that the removed reporting requirement included in this action will reduced time burden by 256 hours, negligibly reduce cost to the public, and reduce cost to the government by $25,943. Send comments regarding these burden estimates or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS (see ADDRESSES) and by email to [email protected], or fax to (202) 395-7285.

Notwithstanding any other provisions of the law, no person is required to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number. All currently approved NOAA collections of information may be viewed at: http://www.cio.noaa.gov/services_programs/prasubs.html.

Pursuant to section 604 of the Regulatory Flexibility Act, NMFS has prepared a Final Regulatory Flexibility Analysis (FRFA), summarized in the preamble of this final rule, in support of the management measures in this action. The FRFA describes the economic impact that this final rule will have on small entities, as well as the economic impacts that other, non-preferred alternatives could have on small entities.

The FRFA incorporates the economic impacts and analysis summaries from the Initial Regulatory Flexibility Analysis (IRFA), a summary of the significant issues raised by the public in response to the IRFA, and NMFS's responses to those comments. A copy of the RFA, RIR, and the EA are available upon request (see ADDRESSES).

None of the public comments raised issues related to the IRFA or the economic impact of the rule on affected entities.

Based on permit data for 2014, 370 separate vessels hold Atlantic mackerel, squid, and butterfish limited access permits, 271 entities own those vessels, and, based on current Small Business Administration (SBA) definitions, 259 of these are small entities. Of the 259 small entities, 25 had no revenue in 2014 and those entities with no revenue are considered small entities for the purpose of this analysis. All of the entities that had revenue fell into the finfish or shellfish categories, and the SBA definitions for those categories that applied in 2014 state that small entities engaged in finfish fishing have combined annual receipts not exceeding $20.5 million, and small entities engaged in shellfish fishing have combined annual receipts not exceeding $5.5 million.

The only action in this rule that involved increased restrictions applies to Atlantic mackerel limited access permits so those numbers are listed separately (they are a subset of the above entities). Based on permit data for 2014, 139 separate vessels hold Atlantic mackerel limited access permits, 105 entities own those vessels, and based on current SBA definitions, 97 were small entities. Of the 97 small entities, 3 had no revenue in 2014, and those entities with no revenue were considered small entities for the purpose of this analysis. Of the entities with revenues, their average revenues in 2014 were $1,212,230. Sixty entities had primary revenues from finfish fishing and 34 had their primary revenues from shellfish fishing.

This final rule contains collection-of-information requirements subject to the PRA that have been approved by the OMB under Control Number 0648-0679.

Under this action, all limited access longfin squid vessels intending to land more than 2,500 lb (1.13 mt) of longfin squid will no longer be required to call PTNS to request an observer. This would remove the information collection requirement, reduce logistical issues for the Northeast Fishery Observer Program, and reduce burden for industry participants. The reduction in burden estimates for these new requirements apply to all limited access longfin squid vessels. In a given fishing year, NMFS estimates that removal of this reporting requirement will reduce time burden by 256 hours, negligibly reduce cost to the public, and reduce cost to the government by $25,943 from that which was previously approved under OMB Control Number 0648-0679.

The Atlantic mackerel commercial DAH (9,177 mt) represents a reduction from status quo (2015 DAH = 20,872 mt). Despite the reduction, the proposed DAH is above recent U.S. landings; mackerel landings for 2012-2014 averaged 5,136 mt. Thus, the reduction should not have more than a minimal impact on the affected small entities compared to recent operation of the fishery (2012-2015). Even though the 2016-2018 quota is lower than 2015, it will still allow more catch compared to the catch in any year from 2012-2015.

The river herring and shad catch cap in the Atlantic mackerel fishery has the potential to prevent the fishery from achieving its full mackerel quota if the river herring and shad encounter rates are high, but it is very unlikely that this fishery would close before exceeding the levels of landings experienced since 2010, when annual landings have been less than 11,000 mt. Based on the operation of the cap in 2014 and 2015 (the first years of the cap), as long as the fishery can maintain relatively low river herring and shad catch rates, the lower cap should not negatively impact fishery participants. However, a few large river herring and shad bycatch events could potentially shut down the Atlantic mackerel fishery early. At 2014 prices ($491/mt), the Atlantic mackerel quota (9,177 mt) could potentially generate about $4.5 million. While the performance of the cap in 2014-2015 suggests that the fishery can operate with very low river herring and shad catch rates, if river herring and shad catch rates happen to be relatively high, then most of the Atlantic mackerel catch (and associated revenues) could be forgone.

The butterfish mesh requirement adjustment would allow more butterfish to be retained with small mesh gear; therefore, there should be no negative impacts on the relevant entities.

For the reasons set out in the preamble, 50 CFR part 648 is amended as follows:

NMFS published a proposed rule to modify regulations governing the Crab Rationalization (CR) Program on February 23, 2016 (81 FR 8886). The comment period on the proposed rule ended on March 24, 2016. NMFS received four comment letters on the proposed rule that contained nine unique comments.

This section includes a brief description of the CR Program and the CR Program regulations that would be modified by this final rule. Additional background information and detail is provided in the proposed rule and in the final rule to implement the CR Program (70 FR 10174, March 2, 2005).

The CR Program is a catch share program for nine BSAI crab fisheries that allocates those resources among harvesters, processors, and coastal communities. Under the CR Program, NMFS originally issued QS to eligible harvesters as determined by eligibility criteria and participation in the CR Program fisheries during qualifying years. A harvester's allocation of QS for a fishery was based on the landings made by his or her vessel in that fishery. Specifically, each allocation was the harvester's average annual portion of the total qualified catch in a crab fishery during a specific qualifying period. NMFS issued four types of QS: Catcher vessel owner (CVO) QS was assigned to holders of LLP licenses who delivered their catch onshore or to stationary floating crab processors; catcher/processor vessel owner (CPO) QS was assigned to LLP holders that harvested and processed their catch at sea; captains and crew onboard catcher/processor vessels were issued catcher/processor crew (CPC) QS; and captains and crew onboard catcher vessels were issued catcher vessel crew (CVC) QS. CVC and CPC QS are also known as “crew shares” or “C shares.” Each year, a person who holds QS may receive individual fishing quota (IFQ), which is an exclusive harvest privilege for a portion of the annual total allowable catch (TAC). Under the CR Program, QS holders can form cooperatives to pool the harvest of the IFQ on fewer vessels to minimize operational costs and to provide additional flexibility in harvesting operations.

NMFS also issued processor quota share (PQS) under the CR Program. Each year, PQS yields an exclusive privilege to receive (for processing) a portion of the IFQ in each of the nine CR Program crab fisheries. This annual exclusive processing privilege is called individual processing quota (IPQ). A specified portion of IFQ derived from CVO QS must be matched and delivered to a processor with IPQ.

This final rule includes three actions: The first action creates an exemption for the WAG fishery from the CR Program prohibition against a vessel resuming fishing before the vessel has offloaded all CR Program crab from the vessel; the second action amends the CR Program regulations to clarify document submission requirements for individuals submitting an application to receive C shares by transfer; and the third action amends LLP regulations to remove BSAI crab species that are no longer managed under the LLP.

This section provides a brief description of the WAG fishery. For a more detailed description, please see Section 3.5 of the final RIR (see ADDRESSES) and the preamble of the proposed rule (81 FR 8886, February 23, 2016) for this action.

The WAG fishery is a relatively small but lengthy fishery prosecuted in extremely remote waters in the western Aleutian Islands. Historically, the community of Adak, Alaska, has been an active processing port for the WAG fishery. The WAG fishery has a relatively small annual total allowable catch compared to other BSAI crab fisheries, such as the Bristol Bay red king crab or snow crab fisheries. The total allowable catch for the 2015/2016 crab fishing year in the WAG fishery is 2.98 million pounds. The average total tank capacity of the catcher vessels that participate in the WAG fishery is between 120,000 and 150,000 pounds (see Section 3.5.3 of the final RIR). The WAG quota share (QS) holders have formed a harvest cooperative to ensure the efficient harvest of this remote fishery. In recent years the fleet has included two to three catcher vessels and a single catcher/processor. Section 3.5.1 of the final RIR provides additional detail on historical and recent participation in the WAG fishery.

Prior to this final rule, the CR Program regulations prohibited a vessel from resuming fishing for CR Program crab or taking CR Program crab on board a vessel once a landing (offload) had commenced and until all CR Program crab were offloaded (see § 680.7(b)(3)). Under this regulation, a catcher vessel could offload portions of CR Program crab at multiple processors, but the vessel was prohibited from fishing for CR Program crab between these offloads.

NMFS implemented the prohibition against resuming fishing after a CR Program landing had commenced (hereafter called the full offload requirement) to facilitate enforcement of CR Program requirements for catch monitoring and full catch accounting. NMFS intended that this prohibition would prevent persons from, for example, discarding deadloss CR crab at sea prior to debiting this crab from the QS holder's IFQ account and subsequently high grading with CR crab harvested after the partial offload. The prohibition was intended to ensure that all fishery removals are monitored and reported in the CR Program catch accounting system. NMFS and ADF&G estimate total fishery removals through monitoring measures that include collection of data on landed catch weight and crab species composition, bycatch, and deadloss. See the final rule to implement the CR Program for a description of the monitoring and catch accounting provisions in the BSAI crab fisheries (70 FR 10174, March 2, 2005).

The proposed rule and Section 3.6.2 of the final RIR describe that under the Crab FMP, the Alaska Department of Fish and Game (ADF&G) has implemented specific monitoring requirements in the WAG fishery. ADF&G requires catcher/processors in the WAG fishery to carry an observer on board the vessel for 100 percent of the vessel's trips. Catcher vessels in the WAG fishery are required to carry an observer on board for the harvest of at least 50 percent of their total harvest weight for each 3-month period of the overall 9-month season. The portion of actual observed harvest for catcher vessels in the WAG fishery has ranged from 57 percent to 70 percent annually. Vessel operators in the BSAI crab fisheries must complete a daily fishing log, which is issued by NMFS. Data from the daily fishing log are used, along with observer data, to verify landings and to ensure accurate accounting for all fishery removals.

The proposed rule preamble provides a description of the need for this final rule, which is briefly summarized here. In 2014, the processing facility in Adak began taking deliveries of WAG from catcher vessels to supply the live crab market. The crab are offloaded from the vessel and held at the processing facility until packed for transport on a commercial airline flight from Adak for delivery to domestic and international markets. The amount of crab offloaded at Adak and delivered to the live market is limited by the amount of aircraft hold space that is available to ship crab on bi-weekly flights from Adak. Aircraft capacity is approximately 8,000 to 14,000 pounds of crab per flight, depending on the type of aircraft. Vessels operating in the WAG fishery make crab deliveries opportunistically to the processing facility when live markets are available. Harvesters receive a higher price per pound for the live market than for crab delivered and processed to supply the traditional market for cooked and frozen crab sections (see Sections 3.5.4 and 3.5.5.1 of the final RIR for more information about deliveries to the live crab market from Adak).

The processing facility in Adak is currently able to receive only limited amounts of deliveries of crab for the live market, approximately 400,000 pounds for the 2015/2016 crab fishing year. As described in the proposed rule and Section 3.5.5 of the final RIR, the processing facility in Adak has encountered a number of operational challenges since it was established in 1999 and is not currently able to receive and process a full offload of crab, which can be up to 150,000 pounds in the WAG fishery. To comply with the full offload requirement, catcher vessels delivering crab for the live market were required to make partial landings at the Adak processing facility and transit several hundred miles from the fishing grounds to Dutch Harbor or Akutan to deliver the remaining crab on board the vessel to a processor that can accept a larger vessel load of crab from the vessels.

In February 2015, the Council received requests from representatives for WAG fishery participants and representatives of the community of Adak to exempt the WAG fishery from the CR Program prohibition against a person resuming fishing before all crab have been offloaded from a vessel. The Council recommended a regulatory amendment to exempt participants in the WAG fishery from the prohibition at § 680.7(b)(3) against a person resuming fishing before all CR Program crab have been offloaded from the vessel. The Council recommended this regulatory amendment to reduce inefficiencies and costs associated with requiring crab harvesting vessels to travel significant distances to land a partial load of WAG. This rule allows vessels harvesting WAG to make partial landings for delivery to the live market and continue harvesting crab before fully offloading at a processor that can receive a larger vessel load of crab.

Action 1 creates an exemption for the WAG fishery from the prohibition at § 680.7(b)(3) that precludes a person from resuming fishing before all crab has been offloaded from a vessel. This rule will not alter current landing, reporting, and enforcement requirements in CR Program regulations.

This rule relieves a restriction on fishing activity in the WAG fishery and could increase operational efficiencies and revenues for participants in the WAG fishery. The Council determined that this rule is necessary for the WAG fishery due to the remote and economically challenging characteristics of the fishery as well as the benefits to harvesters, processors located in the western Aleutians, and any communities that develop a live market opportunity.

The proposed rule and Sections 3.7.1 and 3.7.2 of the final RIR describe how this rule will support the WAG fishery harvesters, processors, and communities that seek to diversify into the live crab market. The vessels currently participating in the WAG fishery could receive additional WAG fishery revenues due to the increased price they receive for crab in the live market. In addition, these WAG fishery harvesters could potentially reduce operating costs and increase efficiency by making small offloads of WAG crab to the western Aleutian Islands and resuming fishing to harvest a full vessel load of crab before transiting to offload the crab at a processor that can process all of the vessel's crab. This may result in reduced fuel costs and time spent returning to the fishing grounds.

The Council determined, and NMFS agrees, that this rule is not likely to have negative impacts on the management of the WAG fishery or on the catch monitoring and accounting requirements established by the CR Program. The Council considered the impacts of this rule on Federal management of the WAG fishery. Section 3.7.4 of the final RIR describes that this rule will not change the current CR Program landing and reporting requirements, or catch accounting system. All retained crab catch will continue to be weighed, reported, and debited from the appropriate IFQ account under which the crab was harvested, and from the IPQ account under which the catch was processed.

The proposed rule and Section 3.7.5 of the final RIR describe the impacts of this rule on the State of Alaska (State) management of the WAG fishery. The Crab FMP establishes a State/Federal cooperative management regime that defers crab management to the State with Federal oversight. State regulations are subject to the provisions of the Crab FMP, including its goals and objectives, the Magnuson-Stevens Act national standards, and other applicable Federal laws. NMFS expects that ADF&G will make minor modifications to its sampling and observer coverage protocols for WAG fishery vessels that deliver crab to Adak for supply to the live market. NMFS anticipates that ADF&G will continue to coordinate with vessels in the WAG fishery to ensure that accurate biological data and catch accounting needs are met with minimal impacts on State management of the WAG fishery consistent with requirements of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), the Crab FMP, and ADF&G regulations.

Action 2 corrects regulations governing the approval criteria for an application to receive C shares by transfer. Under the CR Program, individuals must meet specific eligibility requirements to receive C shares by transfer. Amendment 31 to the Crab FMP modified several regulations governing the acquisition, use, and retention of C shares under the CR Program (80 FR 15891, March 26, 2015).

The eligibility requirements to receive C shares by transfer are located at § 680.41(c)(1)(vii). An applicant must meet initial eligibility criteria, which include having U.S. citizenship, at least 150 days of sea time in a U.S. commercial fishery, and recent participation as crew in at least one delivery of crab in the past year. In addition, § 680.41(c)(1)(vii) specifies that until May 1, 2019, in lieu of participation as crew in one of the CR Program fisheries in the 365 days prior to application submission, an individual may meet the crew participation requirement to receive C shares by transfer if that person (1) received an initial allocation of C shares (CVC or CPC QS), or (2) participated as crew in at least one delivery of crab in a CR Program crab fishery in any 3 of the 5 crab fishing years starting on July 1, 2000, through June 30, 2005.

The approval criteria for NMFS to approve an application to receive C shares by transfer are located at § 680.41(i). The regulations state that NMFS will not approve a transfer application unless it has determined that the applicant has met all approval criteria.

The regulations implementing the CR Program in 2005 included approval criteria for an individual to demonstrate to NMFS that he or she meets the eligibility requirements at § 680.41(c)(1)(vii) at the time of transfer. These approval criteria were inadvertently removed by amendatory language in the final rule that implemented regulations to provide harvesting cooperatives, crab processing quota shareholders, and Western Alaska Community Development Quota groups with the option to make web-based transfers (74 FR 51515, October 7, 2009). These approval criteria clarify for applicants that they must meet the eligibility requirements at § 680.41(c)(1)(vii) at the time of transfer, specifically that they must meet the recent participation requirements within the prior 365 days for their application for transfer to be approved. This final rule adds these approval criteria at § 680.41(i)(11) to ensure that the regulations are consistent with the original intent of the CR Program.

This final rule also adds regulations specifying that acceptable evidence for demonstrating required participation criteria specified at § 680.41(c)(1)(vii) is limited to an ADF&G fish ticket signed by the applicant or an affidavit from the vessel owner attesting to the applicant's fishery participation.

Action 3 amends LLP regulations for consistency with the Crab FMP to avoid public confusion about the regulatory requirements that apply to certain crab stocks. This rule modifies the LLP regulations at § 679.4(k)(1)(ii) to remove the following five crab species: Aleutian Islands C. bairdi crab, Eastern Aleutian Islands red king crab; scarlet or deep sea king crab; grooved Tanner crab; and triangle Tanner crab. These stocks were removed from the Crab FMP in 2008 through Amendment 24 and are no longer subject to Federal management (73 FR 33925, June 16, 2008). This final rule adds Aleutian Islands C. bairdi crab to the list of stocks that NMFS proposed to remove from the LLP regulations. This change is described briefly in this section and in detail in the Change from the Proposed Rule section.

The preamble to the proposed rule provided a description of the LLP for crab stocks and Amendment 24 to the Crab FMP. In summary, the LLP limits the number, size, and specific operation of vessels deployed in BSAI crab fisheries managed under the Crab FMP and established several area/species endorsements for crab LLP licenses.

The CR Program removed BSAI crab fisheries that are managed under the CR Program from the LLP. The fisheries not included in the CR Program remained under the Crab FMP and under the governance of the LLP. Fishermen participating in those fisheries are required to have a crab LLP license with the appropriate area/species endorsement on the vessel. Although the Crab FMP establishes a State/Federal cooperative management regime that delegates crab management to the State with Federal oversight, NMFS manages Crab FMP stocks subject to LLP requirements.

Amendment 24 to the Crab FMP was approved in 2008. Amendment 24 removed 12 BSAI crab stocks not in the CR Program from the Crab FMP and deferred management to the State for these fisheries (73 FR 33925, June 16, 2008). Upon removal of these species from the Crab FMP, NMFS no longer had authority to manage the following species under the LLP program: Aleutian Islands C. bairdi crab, Eastern Aleutian Islands red king crab, scarlet or deep sea king crab, grooved Tanner crab, and triangle Tanner crab. The State currently manages these fisheries under State regulations.

Amendment 24 to the Crab FMP did not require implementing regulations. As a result, Aleutian Islands C. bairdi crab, Eastern Aleutian Islands red king crab, scarlet or deep sea king crab, grooved Tanner crab, and triangle Tanner crab were not removed from LLP regulations when Amendment 24 was implemented. In order to align LLP regulations with the Crab FMP and avoid confusion about regulatory requirements, this final rule modifies the LLP regulations at § 679.4(k)(1)(ii) to eliminate these species from the LLP regulations. This final rule does not change current management of these crab fisheries.

As described in the preamble to the proposed rule, NMFS will modify and reissue some crab LLP licenses to implement this final rule. Prior to this final rule, the LLP regulations specified that crab LLP licenses may have up to four area/species endorsements:

• Aleutian Islands C. opilio/C. bairdi crab;

• Eastern Aleutian Islands red king crab;

• Bering Sea Minor Species (includes Bering Sea golden king crab, scarlet or deep sea king crab, grooved Tanner crab, and triangle Tanner crab); and

• Norton Sound red and blue king crab.

To implement this final rule, NMFS will modify LLP licenses to remove the Aleutian Islands C. bairdi crab endorsement from the combined Aleutian Islands C. opilio and C. bairdi area/species endorsements for LLP licenses. Current LLP license records indicate there are 274 LLP licenses with the Aleutian Islands C. opilio and C. bairdi area/species endorsement. The endorsement will be modified so that it only includes Aleutian Islands C. opilio, and the 274 licenses will be reissued, reflecting the change.

To implement this final rule, NMFS will modify LLP licenses to remove the Eastern Aleutian Islands red king crab endorsement from LLP licenses. Current LLP license records indicate that there are 30 LLP licenses with this endorsement.

NMFS does not need to reissue LLP licenses with a Bering Sea Minor Species endorsement to implement this final rule. Even though scarlet or deep sea king crab, grooved Tanner crab, and triangle Tanner crab fisheries are no longer subject to Federal management, the Bering Sea golden king crab fishery is still included in the Crab FMP and is subject to Federal management under the LLP. Therefore an LLP license with a Bering Sea Minor Species endorsement is still required for participation in this fishery. Because of this, NMFS does not need to remove the endorsement as a whole. The LLP regulations determine the specific area/species endorsements to which the Bering Sea Minor Species endorsement applies, so NMFS has determined that it can implement this change by amending the LLP regulations, rather than reissuing the licenses carrying this endorsement. Current LLP license records indicate that there are 287 LLP licenses with this endorsement.

Many LLP license holders hold more than one area/species endorsement on their LLP license, therefore NMFS will only need to reissue 274 LLP licenses due to the overlap in LLP license holders with the Aleutian Islands C. opilio and C. bairdi crab endorsement and the Eastern Aleutian Islands red king crab endorsement. NMFS will incur minor administrative costs to reissue LLP licenses to remove the Aleutian Islands C. bairdi crab and Eastern Aleutian Islands red king endorsement. This action will not change current management of the Aleutian Islands C. bairdi crab, Eastern Aleutian Islands red king crab, Bering Sea golden king crab, scarlet or deep sea king crab, grooved Tanner crab, and triangle Tanner crab fisheries.

NMFS received four comment letters from the public that contained nine unique substantive comments during the public comment period for the proposed rule to implement these three actions. NMFS' responses to these comments are presented below.

Comment 1: All four commenters expressed support for Action 1 in this final rule, to create an exemption for the WAG fishery from the CR Program prohibition against a vessel resuming fishing before the vessel has offloaded all CR Program crab from the vessel.

Response: NMFS acknowledges these comments.

Comment 2: One commenter requested that NMFS implement this final rule as soon as possible so that it is effective before the end of the current WAG fishing season on April 30, 2016.

Response: NMFS acknowledges this comment. This final rule relieves a restriction on fishing activity in the WAG fishery and could increase operational efficiencies and revenues for participants in the WAG fishery. Therefore, for reasons discussed in the Classification section, the NMFS Assistant Administrator has waived the 30-day delay in effectiveness of this final rule to allow WAG participants to benefit from this exemption before the end of the 2015/2016 WAG fishing season. This will allow WAG participants to make partial offloads and then resume fishing on the day that this final rule is published in the Federal Register.

Comment 3: The proposed revisions to § 679.4(k)(1)(ii)(A) do not appear to remove the LLP requirement for Aleutian Islands C. bairdi crab. Aleutian Islands C. bairdi crab was removed from the Crab FMP under Amendment 24. Therefore, the final rule should remove this stock from the LLP regulations along with the proposed stocks.

Response: NMFS agrees. NMFS inadvertently omitted Aleutian Islands C. bairdi crab from the list of crab stocks to be removed from the LLP regulations in the proposed rule. As described in the Change from the Proposed Rule section, this final rule removes Aleutian Islands C. bairdi crab from the list of crab stocks to be removed from the LLP regulations as recommended by the commenter.

Comment 4: The proposed rule incorrectly stated that observer or dockside sampling data are used to debit IFQ and IPQ accounts in the CR Program online catch accounting system. The RIR/IRFA correctly states that crab landings data are used to debit IFQ and IPQ accounts under the CR Program.

Response: NMFS agrees. While the preamble to the proposed rule contained an incorrect statement regarding the type of data used to debit IFQ and IPQ accounts, the RIR/IRFA correctly stated that eLandings is used for catch accounting purposes to debit crab landings from IFQ and IPQ accounts. The incorrect statement in the preamble to the proposed rule did not change the issues involved in establishing this final rule to exempt the WAG fishery from full offload requirements. No changes are necessary to address this comment in the final rule.

Comment 5: The proposed rule incorrectly states that ADF&G requires operators in the BSAI crab fisheries to complete a daily fishing log. NMFS regulations at § 680.5(a) and § 679.5(c)(1) require operators to complete the daily fishing log.

Response: NMFS agrees that the requirement to complete a daily fishing log is a NMFS requirement, rather than an ADF&G requirement. The RIR/IRFA correctly stated that NMFS regulations at 680.5(a) and 679.5(c)(1) require operators to complete the daily fishing log. No changes are necessary to address the comment in this final rule.

Comment 6: NMFS should consider expanding the exemption for the WAG fishery from the full offload delivery requirements to all CR Program fisheries. Participants in other CR Program fisheries have an interest in exploring the possibilities for partial offloads to supply live crab markets for other CR Program fisheries from other communities. Expanding the exemption could allow other participants to take advantage of the efficiency created by the exemption and the opportunity to access markets with higher prices for crab.

Response: As noted in the proposed rule and the RIR/IRFA and the final RIR, during the Council's initial discussion of the need for this action, it also considered extending the exemption from the prohibition against resuming fishing before all CR Program crab have been landed to all CR Program fisheries. However, the Council rejected this approach because it was too broad for the stated objectives, which were specific to the WAG fishery. Expanding the exemption to CR Program fisheries is outside the scope of this final rule.

Comment 7: The commenter expressed support for the addition of approval criteria at § 680.41(i)(11) under Action 2 of the proposed rule to correct the previous error in the amendatory language of the final rule that implemented regulations to provide entities with the option to make Web-based transfers.

Response: NMFS acknowledges this comment.

Comment 8: The commenter noted ongoing concerns with the implementation of C share provisions under the CR Program, including the time lag between the Council final action on Amendment 31 to the Crab FMP (April 2008) and the publication of the final rule implementing Amendment 31 (March 26, 2015, 80 FR 15891).

Response: NMFS acknowledges this comment but notes that Action 2 of this final rule only corrects a previous amendatory error. Action 2 of this final rule does not modify the existing C share provisions under the CR Program. Comments about the implementation of Amendment 31 to the Crab FMP are outside of the scope of this final rule.

Comment 9: NMFS should carefully review its regulations prior to the implementation of provisions under Amendment 31 to the Crab FMP that can revoke C shares so that quota shareholders and prospective shareholders have clarity and certainty regarding their eligibility and QS holdings.

Response: NMFS acknowledges this comment but notes that the implementation of Amendment 31 is outside the scope of this final rule.

This final rule includes one change to the proposed regulatory text. This final rule modifies the regulatory text at § 679.4(k)(1)(ii) to eliminate Aleutian Islands C. bairdi crab from LLP regulations, in addition to removing the proposed four crab stocks: Eastern Aleutian Islands red king crab; scarlet or deep sea king crab; grooved Tanner crab; and triangle Tanner crab.

NMFS has determined that this change to the final rule is necessary to remove the Aleutian Islands C. bairdi crab stock from the LLP regulations in addition to the four species included in the proposed rule because Aleutian Islands C. bairdi crab was also eliminated from the Crab FMP with Amendment 24. As described in the response to comment 3 in the Comments and Responses section, NMFS did not propose this regulatory change. This change corrects that error. This change from the proposed to final rule is necessary to ensure the regulations are consistent with the Crab FMP.

Pursuant to section 305(d) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this rule is consistent with the Crab FMP, other provisions of the Magnuson-Stevens Act, and other applicable law.

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

The NMFS Assistant Administrator finds good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effectiveness for the provisions in this final rule. A delay in the effective date of this rule would unnecessarily delay regulatory revisions that would provide an exemption from the prohibition against resuming fishing before all CR Program crab have been fully offloaded from a vessel. The revised regulations will allow participants in the WAG fishery to conduct partial offloads and resume fishing before all CR Program crab have been fully offloaded. A delay in effectiveness of the revised regulations would prevent participants from conducting partial offloads and resuming fishing before the close of the 2015/2016 WAG fishing season on April 30, 2016, thus undermining the purpose of the rule.

As described in the preamble to the proposed and final rule, NMFS implemented the prohibition against resuming fishing after a CR Program landing had commenced to facilitate enforcement of CR Program requirements for catch monitoring and full catch accounting. NMFS intended that this prohibition would prevent persons from discarding deadloss CR crab at sea prior to debiting this crab from the QS holder's IFQ account and subsequently high grading with CR crab harvested after the partial offload. The prohibition was intended to ensure that all fishery removals are monitored and reported in the CR Program catch accounting system.

The Assistant Administrator has determined that this prohibition is unnecessary for the WAG fishery because participants in this fishery are unlikely to discard and subsequently high grade Western Aleutian golden king crab. First, crew harvesting Western Aleutian golden king crab only retain healthy crab of legal size and discard all dead, damaged, or diseased crab during the sorting process at the harvesting grounds. Thus, there is little incentive to discard and high grade after landing has commenced. Second, at-sea discards of unreported crab as a result of quota overages are unlikely because the CR Program cooperative structure, online quota transfers, and post-delivery quota transfers gives CR Program participants several options to obtain additional Individual Fishing Quota. Finally, fifty to seventy percent of the WAG fishery is monitored by observers. The presence of observers on board vessels reduces the likelihood of illegal discards and high grading of crab.

This final rule will increase operational efficiencies and revenues for participants in the WAG fishery. Prior to this final rule, vessels could offload portions of CR Program crab at multiple processors but were prohibited from resuming fishing or taking CR Program crab on board the vessel once a landing had commenced and until all CR crab were landed. As noted in the proposed rule and final RIR, the prohibition against resuming fishing before all crab have been offloaded from a vessel created inefficiencies and costs associated with requiring crab harvesting vessels to travel significant distances to land a partial load of WAG. Allowing vessels harvesting WAG to make partial landings for delivery to the live market and continue harvesting crab before fully offloading at a processor that can receive a larger vessel load of crab is expected to increase operational efficiencies and revenues for participants in the WAG fishery.

Waiving the 30-day delay in this final rule's effectiveness will help improve economic opportunities for the WAG fishery, which is remote and economically challenging for participants, as well as create the possibility of mutual benefits to harvesters, processors located in the western Aleutians, and any communities that develop a live market opportunity. There is no administrative need for additional time beyond the publication of this final rule. This is a noncontroversial action that positively affects a small number of fishery participants by relieving a restriction. NMFS is unaware of any participants who would not be in favor of or would be potentially harmed by waiving the 30-day delay in effectiveness. Without waiving the 30-day delay in effectiveness, WAG participants affected by this final rule would not be able to benefit from the exemption before the end of the 2015/2016 fishing season, which would delay the associated economic opportunities being sought through this final rule.

For these reasons, the NMFS Assistant Administrator finds good cause to waive the 30-day delay in effectiveness and this final rule is effective on the day that it is published in the Federal Register.

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a final regulatory flexibility analysis, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. The preamble to the proposed rule (81 FR 8886, February 23, 2016) and the preamble to this final rule serve as the small entity compliance guide. This rule does not require any additional compliance from small entities that is not described in the preamble to the proposed rule and this final rule. Copies of the proposed rule and this final rule are available from NMFS at the following Web site: http://alaskafisheries.noaa.gov.

Section 604 of the Regulatory Flexibility Act requires an agency to prepare a FRFA after being required to publish a general notice of proposed rulemaking and when an agency promulgates a final rule under section 553 of Title 5 of the U.S. Code. The following paragraphs constitute the FRFA for this action.

Section 604 describes the required contents of a FRFA: (1) A statement of the need for, and objectives of, the rule; (2) a statement of the significant issues raised by the public comments in response to the initial regulatory flexibility analysis, a statement of the assessment of the agency of such issues, and a statement of any changes made in the proposed rule as a result of such comments; (3) the response of the agency to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration in response to the proposed rule, and a detailed statement of any change made to the proposed rule in the final rule as a result of the comments; (4) a description of and an estimate of the number of small entities to which the rule will apply or an explanation of why no such estimate is available; (5) a description of the projected reporting, recordkeeping and other compliance requirements of the rule, including an estimate of the classes of small entities which will be subject to the requirement and the type of professional skills necessary for preparation of the report or record; and (6) a description of the steps the agency has taken to minimize the significant economic impact on small entities consistent with the stated objectives of applicable statutes, including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other significant alternatives to the rule considered by the agency which affect the impact on small entities was rejected.

A description of the need for, and objectives of, the rule is contained in the preamble to the proposed rule and this final rule and is not repeated here. This FRFA incorporates the IRFA and the summary of the IRFA in the proposed rule (81 FR 8886, February 23, 2016).

NMFS published a rule that proposed to modify regulations governing the CR Program on February 23, 2016 (81 FR 8886). An IRFA was prepared and summarized in the Classification section of the preamble to the proposed rule. The comment period on the proposed rule ended on March 24, 2016. NMFS received 4 letters of public comment containing nine unique substantive comments on the proposed rule. These comment letters did not address the IRFA. The comments did generally address the economic impacts of the rule by requesting that the final rule be implemented as soon as possible to allow the participants in the WAG fishery to conduct partial offloads and resume fishing prior to the close of the WAG fishery season on April 30, 2016. As explained previously, the NMFS Assistant Administrator finds good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effectiveness for the provisions in this final rule. The Chief Counsel for Advocacy of the Small Business Administration did not file any comments on the proposed rule.

The Small Business Administration defines a small commercial shellfish fishing entity as one that has annual gross receipts, from all activities of all affiliates, of less than $5.5 million (79 FR 33647, June 12, 2014).

Action 1 creates an exemption for the WAG fishery from the prohibition at § 680.7(b)(3) that precludes a person from resuming fishing before all crab has been offloaded from a vessel. Under Action 1, the entities directly regulated by this rule are those entities that participate in the WAG fishery: Vessel operators, QS holders, and IFQ holders. This rule does not directly affect PQS holders, IPQ holders, or communities. Three vessels were active in the 2013/2014 WAG fishery. These vessels received the majority of their revenue from shellfish from 2012 through 2014. The entities directly regulated by this rule are members of a cooperative that exceeds the $5.5 million revenue threshold for a shellfish entity and are not considered small entities (see Section 4.3 of the final RIR). The number of WAG fishery QS holders is listed in Table 3-3 in Section 3.5.2 of the final RIR. Gross revenue information is not available for these QS holders. Of the QS holders listed, at least 3 of the entities holding catcher vessel owner (CVO) QS are known to be large entities as defined by the Small Business Administration. The remaining 11 CVO QS holders and 8 CVC QS holders are assumed to be small entities.

Action 2 adds regulatory text that was inadvertently removed. The effect of Action 2 on directly regulated small entities is described in the FRFA prepared for a final rule implementing regulations to provide harvesting cooperatives, crab PQS holders, and Western Alaska Community Development Quota groups with the option to make web-based transfers (74 FR 51515, October 7, 2009) and for regulations implementing Amendment 31 to the Crab FMP (80 FR 15891, March 26, 2015).

Action 3 removes regulatory requirements for LLP licenses that are no longer applicable under the Crab FMP as described in the analysis for Amendment 24 to the Crab FMP (73 FR 33925, June 16, 2008). Action 3 will not impact directly regulated entities because no entities (small or otherwise) are currently participating in these crab fisheries, and this rule will not preclude them from doing so under the appropriate State regulations.

Action 1 will not require any modifications to the current Federal recordkeeping and reporting requirements for the CR Program. Action 2 references the collection-of-information requirement for the Application for Transfer of Crab QS or PQS (Office of Management and Budget (OMB) Control Number 0648-0514), however, this rule does not require modifications to the application and will not increase the public reporting burden associated with it. Action 3 will not require LLP license holders to take any action relative to their LLP licenses and will not impact any public reporting burden. There was a collection-of-information requirement for the initial issuance of LLPs, OMB Control Number 0648-0334; however after initial issuance, LLPs do not expire.

An FRFA also requires a description of any significant alternatives to this final rule that would accomplish the stated objectives, are consistent with applicable statutes, and that would minimize any significant economic impact of this rule on small entities. Under all actions, NMFS considered two alternatives—the no action alternative and the action alternative. During the Council's initial discussion of the need for Action 1, it also considered extending the exemption from the prohibition against resuming fishing before all CR Program crab have been landed to all CR Program fisheries. However, the Council rejected this approach because it was too broad for the stated objectives, which were specific to the WAG fishery. Because Actions 2 and 3 are administratively focused and had a narrow purpose and need, there were no alternatives except the action alternative and the no action alternative that were considered.

Under Action 1, the no action alternative is not expected to minimize adverse economic impacts for the small entities directly regulated by this rule. These entities are currently required to make partial landings at the Adak processing facility and transit several hundred miles from the fishing grounds to deliver the remaining crab on board the vessel to a processor that can accept a full offload of crab from the vessels. The no action alternative results in operating inefficiencies and additional costs from requiring vessels to travel significant distances to land a partial load of WAG. The action alternative is expected to provide positive economic impacts for small entities compared to the no action alternative because it lifts a restriction on WAG fishery participants. Therefore, no directly regulated small entities are expected to be adversely impacted by this rule. The action alternative could improve operating efficiencies and increase fishery revenues for WAG fishery participants by supporting the opportunity to supply crab to the live market for a premium price compared to crab delivered to traditional markets.

Under Action 2, the no action alternative would not correct the error in regulation. The action alternative reinstates the regulation that was incorrectly removed. This rule will not change the impacts on small entities from the impacts considered in the FRFA prepared for the final rule implementing regulations to provide harvesting cooperatives, crab processing quota share holders, and Western Alaska Community Development Quota groups with the option to make web-based transfers (74 FR 51515, October 7, 2009) and for Amendment 31 to the Crab FMP. The FRFA for the web-based transfers rule described the impacts of the rule as beneficial to small entities because the rule would simplify the process for completing transfers. The FRFA for Amendment 31 described that under Amendment 31, the submission of documentation demonstrating active participation for C share QS holders was necessary to implement the active participation requirements, but was not expected to have a significant impact on small entities due to the need to submit the information only upon the request to receive C share QS by transfer.

Under Action 3, the no action alternative would retain regulations for LLP license requirements that are no longer applicable under the Crab FMP. The action alternative makes LLP license requirements consistent with the Crab FMP and reduces potential confusion for small entities. Action 3 requires the reissuance of LLP licenses to the 274 license holders with the Aleutian Islands C. bairdi/C. opilio crab and/or the Eastern Aleutian Islands red king crab endorsement; however, this requires no action taken on the part of any small entities. Action 3 will not impact directly regulated entities because no entities are currently participating in these crab fisheries, and this rule will not preclude them from doing so under the appropriate State regulations.

This rule references collection-of-information requirements subject to the Paperwork Reduction Act (PRA), which have been approved by OMB and are listed below by OMB control number.

The crab LLP is mentioned in this rule, but there will be no change in burden or cost results. NMFS will modify LLP licenses to remove the Aleutian Islands C. bairdi/C. opilio crab and Eastern Aleutian Islands red king crab endorsement. NMFS does not expect that removal of these area/species endorsements will impact LLP license holders.

The Application for CR Program Eligibility to Receive QS/PQS or IFQ/IPQ by Transfer and the Application for Transfer of Crab QS/PQS are mentioned in this rule, but there will be no change in burden or cost results. The fishery participation approval criteria for an individual to receive C share QS by transfer were inadvertently deleted from the regulations with a final rule published on October 7, 2009 (74 FR 51515) and will be replaced by this action.

Send comments on these or any other aspects of the collection of information, to NMFS (see ADDRESSES), and by email to [email protected] or fax to 202-395-5806.

Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to penalty for failure to comply with, a collection of information subject to the requirement of the PRA, unless that collection of information displays a currently valid OMB control number. All currently approved NOAA collections of information may be viewed at: http://www.cio.noaa.gov/services_programs/prasubs.html.

For the reasons set out in the preamble, NMFS amends 50 CFR part 679 and part 680 as follows: