Federal Register Vol. 81, No.87,

On October 30, 1998, Public Law 105-311,112 Stat. 2950, was signed into law. This law, the Federal Employees Life Insurance Improvement Act, changed many parts of the FEGLI Program. Before the enactment of Public Law 105-311, Option B and C coverage began to reduce for annuitants when they reached age 65. Both coverages reduced by 2% per month until there was no coverage left. This reduction was automatic, and annuitants had no choice.

Public Law 105-311 allows annuitants and persons becoming insured as compensationers to make an election at retirement as to whether they want their Option B and Option C coverage to reduce.

Previous FEGLI regulations provided that shortly before an individual's 65th birthday, he/she would receive a reminder notice, showing what reduction the annuitant/compensationer elected at the time of retirement and what the premiums would be for coverage beyond age 65. The individual then had an opportunity to change his/her reduction election; including choosing to have some multiples of Optional insurance reduce and others not reduce. For persons who were already over age 65 at the time of retirement or becoming insured as a compensationer, the reminder notice was sent as soon as the retirement processing was completed.

On October 1, 2010, OPM published FEGLI final regulations (75 FR 60573) with miscellaneous changes, clarifications, and corrections, including a change made to 5 CFR 870.705(b) and 870.705(d) ending the reduction election opportunity at age 65.

OPM published a FEGLI proposed rule in the Federal Register, 78 FR 77365, December 23, 2013, proposing to reverse the changes to 5 CFR 870.705(b) and 870.705(d) authorized on October 1, 2010, and inviting public comments. The December 23, 2013 rule proposed to restore the second election opportunity for annuitants and compensationers who attain age 65. OPM received no comments and will implement the rule as proposed.

Public Law 105-311, the Federal Employees Life Insurance Improvement Act, 112 Stat. 2950, enacted October 30, 1998, amended chapter 87 of title 5, U.S. Code, to allow retiring employees to elect either No Reduction or Full Reduction for their Option B and Option C coverage. This election was to be made at the time of retirement, the same as the election for Basic insurance. Implementing this provision required programming changes to the electronic records system for annuitants to allow for “mixed” elections, i.e., electing reductions for some coverage, but not for other coverage. While these system changes were being made, annuitants were required to elect either No Reduction or Full Reduction for all Option B and Option C multiples at the time of retirement. Then, shortly before the annuitant's 65th birthday, the insured was given a second opportunity to make a reduction election, this time being allowed to choose No Reduction for some multiples and Full Reduction for others. While the law states that the reduction election must be made at the time of retirement, enrollees affected by this provision have expressed interest in having a second reduction election opportunity. Thus, we are restoring the opportunity for a second election at age 65. This change can be found in § 870.705(b) and § 870.705(d).

OPM has examined the impact of this rule as required by Executive Order 12866 and Executive Order 13563, which directs 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). A regulatory impact analysis must be prepared for major rules with economically significant effects of $100 million or more in any one year. This rule is not considered a major rule because there will be a minimal impact on costs to Federal agencies.

I certify that this regulation will not have a significant economic impact on a substantial number of small entities because the regulation only affects life insurance benefits of Federal employees and retirees.

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

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

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

Table of Contents I. Authority and Background II. Summary of the Rule III. Paragraph-by-Paragraph Analysis IV. Procedural Issues and Regulatory Review I. Authority and Background

Title III of the Energy Policy and Conservation Act of 1975, as amended (“EPCA” or, in context, “the Act”) establishes a program designed to improve the energy efficiency of consumer products (other than automobiles) and of certain industrial equipment. Pursuant to EPCA, the Department sets energy conservation standards and other requirements for covered products and equipment; prescribes protocols to test products and equipment against the standards; requires labeling of covered products and equipment; and establishes procedural mechanisms such as certification programs and enforcement procedures. See 42 U.S.C. 6291, et seq. This rule establishes error-correction procedures that DOE will use in the course of prescribing energy conservation standards under EPCA. It also interprets several provisions of EPCA that may be relevant to the functioning of those procedures.

One of EPCA's many purposes is to improve energy efficiency for a variety of major consumer products and industrial equipment. To achieve this purpose, the Act directs the Department both to undertake certain rulemakings to establish or revise energy conservation standards and to consider amending such standards on a periodic basis—for many products within six years of issuance of a prior final rule. 42 U.S.C. 6295(m)(1). The Act contemplates that such a rulemaking or periodic review will result in a new or amended standard if the Department concludes that such standard would be technologically feasible and economically justified and would result in significant conservation of energy. The Act also bars DOE from “prescrib[ing] any amended standard which increases the maximum allowable energy use . . . or decreases the minimum required energy efficiency” of a covered product. 42 U.S.C. 6295(o)(1). This prohibition against “backsliding,” together with the periodic reviews just described, has the effect over the long term of gradually increasing the energy efficiency of regulated products and equipment.

The process of developing an amendment to an energy conservation standard ordinarily involves extensive technical analyses and voluminous amounts of data. The Department weighs a range of competing technological and economic considerations, such as the feasibility and cost of various energy-saving technologies, the effects of implementing those technologies in products on the market, and the need for national energy and water conservation. It must make predictive judgments regarding the expected effect of its standards over decades, in part because compliance with a standard is usually required a few years out from the rulemaking and in part because many products have decades of useful life. Meanwhile, the drafting of an energy conservation standard on its own (separate from the deliberation involved in selecting the standard) involves substantial technical analysis. In short, an energy conservation standards rulemaking is usually a highly complicated undertaking.

In light of all the considerations described in this preamble, DOE also recognizes that, given the complexity of these rules, it is conceivable that a standards regulation, as issued, may occasionally contain an error. For example, an accidental transposition of digits could result in a standard that is inconsistent with the Department's analysis. Often, it will be evident from the full context what standard DOE intended to set, but the text of a regulation, even if erroneous, has legal effect. Moreover, should such an error go uncorrected for too long, there is a risk that the Department would be unable to undo it because of the limitations on reducing the stringency of its standards. Meanwhile the relevant industries would face uncertainty about the standard, as well as some difficult choices—whether to comply with it, hope that the error is addressed sometime later, or challenge it in court. The process established by this document is meant to avoid undesirable outcomes like these by providing interested parties with an opportunity to timely point out errors to DOE and request that DOE correct them.

This rule establishes DOE's procedures for accepting error-correction requests for its energy conservation standards rules. Specifically, after issuing an energy conservation standards rule subject to this process, the Department will not publish that rule in the Federal Register for 30 days. This 30-day period begins upon the posting of the rule on a publicly-accessible Web site. During the 30-day window, interested parties can review it, including the regulatory text which is to be placed in the Code of Federal Regulations. If, during this period, a party (as defined in this rule) identifies an error in the regulatory text, that party can submit a request that DOE correct the error. An error-correction request must identify the claimed error, explain how the record demonstrates the regulatory text to be erroneous, and state what the corrected version should be.1

The error-correction process is not an opportunity to submit new evidence or comment on the rule, seek to reopen issues that DOE has already addressed or argue for policy choices different from those reflected in the final rule. DOE will not accept new evidence included in or with error-correction requests, and a submitter must rest its explanation solely on the materials already in the record. The Department posts a rule with the appropriate official's signature only after concluding its deliberations and reaching decisions on the relevant factual determinations and policy choices. Consistent with this approach, the Department considers the record with respect to a rule subject to the error correction process closed upon posting of the rule.

After reviewing error-correction requests meeting the criteria set out in this rule, the Department will have a range of options with respect to a rule. If it concludes that the claims of error are not valid, and if it has identified no errors on its own, DOE will proceed to submit the rule for publication in the Federal Register in the same form it was previously posted. By doing so, the Department will effectively be rejecting any error-correction requests it has received; DOE will ordinarily not respond directly to a requester or provide additional notice regarding the request. If, on the other hand, DOE identifies an error in a rule, DOE can correct the error.

As noted in this preamble, in some circumstances, an error may lead the standard contained in DOE's regulation, as originally posted, to require higher energy efficiency or lower energy use than the Department intended based on the record and its deliberations. Correcting such an error through the process established by this rule would not be inconsistent with section 325(o)(1) (or its analogs applicable to certain types of product or equipment). The error-correction process occurs during a window between DOE's posting of a rule and publication of the rule in the Federal Register. As discussed more fully below, DOE interprets section 325(o)(1) and its analogs to permit corrections of a rule that has not yet been published in the Federal Register.

The following discussion describes the provisions of this rule in detail, so as to explain further how the error-correction process will work.

This section describes the purpose of this rule. Consistent with the discussion in this preamble, the rule describes procedures through which the Department will accept and consider submissions regarding possible errors in its standards rules. The section also states the scope of the rule. DOE will apply the procedures described in the rule to those rulemakings establishing or amending energy conservation standards under EPCA. “Energy conservation standard” is a term defined in EPCA, although it has a slightly different definition for consumer products and commercial equipment. With respect to the former, an “energy conservation standard” is generally a performance standard that prescribes a minimum efficiency level or maximum quantity of energy usage for a covered product or, in certain instances, a design requirement. See 42 U.S.C. 6291(6).

Similarly, for commercial equipment, an “energy conservation standard” is a performance standard prescribing a minimum level of energy efficiency or a maximum quantity of energy use for the covered equipment at issue or a design requirement. See 42 U.S.C. 6311(18).

When the Department posts a rule establishing or amending an energy conservation standard, per the statutory definition, for a given type of product or equipment, the Department will engage in the error-correction process established by this rule.

DOE undertakes a variety of other rulemakings under the Act, such as rules to set test procedures, requirements for labeling or certification, and procedures for enforcement. DOE will not routinely utilize this error-correction process for such rules. The Department recognizes the importance of correcting errors in any of its rules, and consistent with the principles of good government, it intends to be responsive to input from members of the public that point out such errors. However, the combination of features described in this preamble—the regular occurrence of high complexity, potentially large significance of the rules, and the possibility that uncorrected errors will have unavoidable long-term consequences—is specific, for rules under the Act, to energy conservation standards. Therefore, the Department considers it appropriate to implement a routine error-correction mechanism only for such rules.

This rule also excludes from its scope any energy conservation standards that DOE sets by issuing direct final rules pursuant to section 325(p)(4) (42 U.S.C. 6295(p)(4)) of EPCA. Section 325(p)(4) allows the Department to set an energy conservation standard, in some circumstances, by issuing a direct final rule. Before doing so, DOE must receive “a statement that is submitted jointly by interested persons that are fairly representative of relevant points of view,” and the Department must determine that the recommended standard is “in accordance with” either section 325(o) or section 342(a)(6)(B) (i.e., 42 U.S.C. 6313(a)(6)(B)) as appropriate depending on the product or equipment at issue. 42 U.S.C. 6295(p)(4). Together with issuing a direct final rule, DOE must publish a notice of proposed rulemaking proposing a standard identical to that established in the direct final rule, and DOE must allow a period of at least 110 days for public comment on the direct final rule. See 42 U.S.C. 6295(p)(4)(B). If the Department receives one or more adverse comments related to the rule and concludes that the comments “may provide a reasonable basis for withdrawing the direct final rule,” the Department can withdraw the direct final rule and proceed with the proposed rule. A withdrawn rule “shall not be considered to be a final rule for purposes of [section 325(o)].” 42 U.S.C. 6295(p)(4)(C)(iii).

DOE notes that, as a practical matter, the mechanisms of the direct final rule process provide an opportunity for correcting errors that is at least as effective as what this rule achieves. If a direct final rule contains an error, the public has an opportunity to identify that error through the comment process provided by statute and any error that a person would have identified during the 30-day window set by this rule could also be identified in the 110-day comment period required by EPCA. See 42 U.S.C. 6295(p)(4)(B). The Department's options for responding to a claim of error in a direct final rule are essentially equivalent to what this rule provides for other standards rules. Absent an error (and if there is no other reason to withdraw the rule), the Department can let a direct final rule stand as-is. Should there be an error, DOE can withdraw the direct final rule. It can then issue a final rule that is based on the notice of proposed rulemaking and avoid the error.

Moreover, withdrawing a direct final rule and replacing it with a final rule based on the associated proposal would not violate section 325(o) even if the change resulted in a lower standard. The direct final rule procedure enacted by Congress is a unique one that provides DOE with the authority to withdraw a direct final rule when certain conditions are met. See 42 U.S.C. 6295(p)(4)(C). Accordingly, that specific procedure already provides a means for DOE to address an error if one is identified.

In sum, the statutory mechanisms for direct final rules permit the correction of errors in a manner similar to what this rule lays out for other EPCA standards rules. Accordingly, the Department considers it unnecessary to apply this particular error-correction process to direct final rules.

This paragraph sets forth several definitions that clarify the meaning of this section and the application of the error-correction process.

DOE is defining the term, “Secretary,” as referring to the Secretary of Energy or the Secretary's delegate.

The term, “Act,” under this rule means the Energy Policy and Conservation Act, as amended.

The term, “Error” for purposes of this rule is defined as an aspect of the regulatory text of a rule that is inconsistent with what the Secretary intended regarding the rule at the time of posting. The “regulatory text,” for these purposes, means the material that is to be placed in the Code of Federal Regulations (“CFR”), together with the amendatory instructions by which the rule communicates what should go in the CFR. In most cases, the Department encapsulates everything about a rule that is legally binding by setting forth specific text in the CFR. The point of the error-correction process is to avoid the harmful consequences of errors in that legally binding material. Errors in explanatory material or interpretive matter in the preamble of a rule may be important, but they can ordinarily be corrected without use of a procedure like the one established by this rule (e.g., issuing a correction notice to clarify or otherwise resolve an error without the need for notice and comment.)

The definition provides illustrative examples of mistakes that might produce Errors. For example, a typographical mistake might cause the text of a regulation to be incorrect; suppose, for example, the text of the regulation stated a party has 50 days to submit an error-correction request, even though the Department has made clear in the preamble that it intends to allow 30 days. As a second example, a calculation mistake might cause the numerical value of a standard to differ from what DOE's technical analyses would justify. The calculations involved in deriving a standard are complex, which could result in an error that causes the regulatory text to codify a standard different from what DOE described in its preamble. As a third example, an amendment to the relevant portions of the regulations might renumber them, but DOE might overlook a cross-reference in another portion of its regulations, which would then refer to the wrong formula. These examples—and those detailed in the regulatory text—are not meant to be exhaustive but highlight two common features: (1) The regulatory text departs from what DOE intended it to be and (2) the rulemaking record reveals what DOE intended. These are the sorts of problems that the Department seeks to offer the opportunity to correct through this rule.

The term, “Party,” means a person that has participated in a rulemaking by submitting timely comments during the rulemaking or by providing substantive input during a public meeting regarding the rulemaking.

This definition is relevant because, as discussed in this preamble, the Department will accept requests for error-correction under this rule only from a person that is a “party” to the rulemaking proceeding in accordance with this definition. The error-correction process is intended to be rapid and streamlined. By pausing to receive suggestions of error, DOE will be delaying the eventual benefits to be produced by an amended standard. Accordingly, the Department is setting the period for error submissions at 30 calendar days.

In furtherance of expeditious review, these requests must be sufficiently detailed to readily identify and resolve the error. In DOE's view, those persons who actively participated during the rulemaking process by providing the agency with substantive feedback regarding its proposal and analyses are in the best position to readily and quickly identify errors that this rule seeks to address in a timely manner. The complexity and comprehensive nature of these analyses also make it more likely that active participants during the rulemaking proceeding would have the requisite foundation to be able to assist DOE with identifying errors and accompanying solutions. Without this procedural limit, DOE's review of error requests would likely be hampered by overly broad (or otherwise inaccurate) submissions from non-party persons that would hinder the agency's ability to expeditiously address meritorious claims identifying erroneous regulatory text. For these reasons, in DOE's view, it is appropriate to accept submissions only from those persons that have engaged in the rulemaking and are already familiar with the record.

The principal means for participating in a rulemaking proceeding is by submitting written comments in response to a notice. Many of DOE's rulemakings to establish or amend its energy conservation standards involve several rounds of public comment, such as notices of proposed rulemaking and supplemental notices of proposed rulemaking. The Department also occasionally publishes notices of data availability through which it solicits comment on its technical analyses, as well as requests for information in which DOE solicits information from the public regarding particular issues. All of these procedures involve the substance of a rule under consideration, and the Department accordingly considers comment on any of them to be sufficient participation to qualify a person as a party. “Comment,” for these purposes, also includes ex parte submissions, which often represent as much engagement with the issues of a rulemaking as do ordinary comment filings. Similarly, the Department seeks public input by hosting public meetings (both in person and online through webinars), at which it presents some substantive information on a given proposed rule and permits participants to speak. This form of participation can also qualify a person as a party. (The definition of “party” requires “substantive input” at a public meeting. DOE does not intend to judge the substantiality of each participant's statements at a public meeting. By “substantive input,” the Department means simply to exclude merely procedural statements such as a participant's identifying himself or herself for the record.)

It bears emphasis, however, that an untimely or improperly submitted comment—including an ex parte submission made after the close of the relevant comment period—will not qualify the submitter as a “party” for purposes of this rule. While a late-filed comment may address substantive issues raised as part of the relevant energy conservation standards rulemaking, DOE is not obligated to consider late comments when reaching its decisions. For the Department to engage in a case-by-case assessment of whether a given person did in fact submit a comment would be inconsistent with the streamlined nature of the error-correction process. Accordingly, for the sake of administrative simplicity, DOE will not entertain an error-correction request from a person whose only participation in the rulemaking was an untimely or improper submission.

Lastly, for purposes of this error-correction process, DOE is defining a “rule” as a rule establishing or amending an energy conservation standard under the Act. DOE will not apply this rule's error-correction process for documents such as general statements of policy, guidance documents, and interpretive guidelines.

This section describes the beginning of the error-correction process. At the outset, DOE will post a rule bearing the signature of an appropriate official of DOE on a publicly-accessible Web site. The record of the rulemaking is closed, and the Department has concluded its deliberations.

However, the Department will not publish the rule in the Federal Register for 30 calendar days. This period of time will allow the public an opportunity to review the rule in order to identify any potential errors and submit a request to DOE to correct such errors. DOE recognizes that it has an obligation under the Administrative Procedure Act to publish a “rule,” as defined in this part, in the Federal Register. The time for error-correction contemplated by this rule will not be a departure from that obligation. The Administrative Procedure Act does not specify that publication in the Federal Register must occur at a particular point following a specified period of time after posting. Meanwhile, as discussed in this preamble, and as is currently the case, no energy conservation standards rule will be effective for some period of time after it has been published in the Federal Register, and the start of the lead-time provided to manufacturers to comply with the standards will begin at publication in the Federal Register. Consequently, the delay in publication in the Federal Register will comply with the Administrative Procedure Act and will not cause prejudice to any interested parties.

This section explains how to submit a request that DOE correct an error in a rule and describes what a request must contain.

A request must be submitted within 30 calendar days of the posting of the rule. As discussed in this preamble, the error-correction process is meant to be rapid and streamlined. In undertaking the procedure, DOE must balance the value of being able to correct errors in its regulations against the cost of delay (e.g., delayed energy savings). The Department believes 30 days should be enough time for persons already familiar with a rulemaking to review the text of the regulation being adopted and identify any errors. In light of that assessment and bearing in mind the cost of delay, a longer period would be inappropriate.

A request must identify an Error, as that term is defined in this rule. A request must identify the claimed Error with particularity by stating what text is erroneous and providing a corrected substitute. Because the error-correction process is focused on the regulatory text, an Error will necessarily involve some piece of text that should be changed. DOE expects a party requesting a change to identify specifically what text is mistaken and why, as well as how DOE should change it.

Consistent with the definition of Error, the error-correction process is not an opportunity to dispute the Department's determinations or policy choices. An energy conservation standards rulemaking is usually a lengthy process, in which the Department provides repeated indications of its proposals, stakeholders have multiple opportunities to provide input, and the Department engages in extensive deliberation. To achieve the energy conservation goals of the Act, as well as to minimize uncertainty for industry and consumers, it is important that the issues in a rulemaking come to a resolution. The error-correction process should not undermine the stability of DOE's already well-established energy conservation standards-setting process, because it will simply ensure that the regulatory text accurately reflects the determinations that DOE has already reached. Accordingly, an error-correction request must identify how the regulatory text departs from DOE's decision, rather than criticizing it on the requester's own grounds or reviving issues from comments previously raised and addressed.

As noted, for the sorts of errors for which this process is appropriate, the rulemaking record should indicate what the correct regulatory text ought to be. Consistent with that observation, an error-correction request must base its claims of what DOE intended on materials in the rulemaking record, such as the preamble to the rule, technical support documents, published notices, comments, and other record materials. A request may not include new evidence, as new evidence would not be relevant for illuminating what the Secretary meant for the regulation to say. Given the ample opportunity for comment and other public input during the rulemaking process, in DOE's view, there is a need to bring finality to a given rulemaking and to avoid having an open-ended regulatory process, and, therefore, the agency will not accept new evidence and further defer the energy saving benefits of the energy conservation standards that are the subject of the rulemaking. Meanwhile, the task of evaluating new evidence would require time beyond what is appropriate for the error-correction process.

Because only parties are allowed to file error-correction requests, a submitter must demonstrate that the requester is a “party” in accordance with this rule's definition of that term. The requester must identify the comment(s) or other input that the requester submitted in the course of the rulemaking.

Finally, this rule requires that requests be submitted electronically by email. This rule does not specify an email address to which requests should be sent, as each final rule will specify the appropriate email address for error-correction requests. The Department may consider a filing submitted by another mechanism if email filing is not feasible; a party seeking to use a different mechanism should consult first with the DOE program point of contact identified in the notice of the final rule for further information.

This section describes the courses of action that the Department may undertake if it believes a request for correction may have identified an error. DOE may undertake to correct the rule, if doing so would be consistent with the applicable requirements of EPCA and the Administrative Procedure Act. In such cases, DOE will ordinarily make the correction before submitting the rule to the Office of the Federal Register for publication. Publication of the submitted rule will take place pursuant to the ordinary procedures of the Office of the Federal Register.

This section describes how the Department will eventually publish a final rule in the Federal Register. If, after 30 calendar days have elapsed since DOE posted a rule subject to this process, DOE receives no proper requests for correction of errors, and identifies no errors on its own, it will simply submit the rule as posted to the Office of the Federal Register for publication. If DOE receives error-correction requests but decides not to undertake any corrections to the rule, it will submit the rule as posted to the Office of the Federal Register for publication. Such submission indicates that the Department has rejected the requests it received, and the Department will ordinarily provide no other response to such requests. Barring extenuating circumstances, the Department will review proper error-correction submissions and submit the rule to the Office of the Federal Register for publication within 30 calendar days after the close of the 30-day period for submitting error-correction requests. Publication of submitted rules will take place in accordance with the ordinary procedures of the Office of the Federal Register.

The Department's rejection of a request does not necessarily mean the claim of error was mistaken. The regulatory text in the posted rule may indeed have been inconsistent with the Department's decision as reflected in the rulemaking record. However, DOE may choose not to correct the regulation because it concludes the regulatory text is nonetheless acceptable; for instance, because it considers the error insignificant.

This section also reiterates certain mandates from EPCA and from the Administrative Procedure Act with respect to publication. DOE will not make any rule subject to this part effective until after DOE has published the rule in the Federal Register. Further, DOE notes that compliance with a new or amended standard is generally linked to a specified lead-time from the date of publication in the Federal Register to provide the affected industries with sufficient time to adjust their products and manufacturing to satisfy the new or amended standard. See, e.g., 42 U.S.C. 6313(f)(4)(B) (providing a lead-time of two to five years for walk-in cooler and freezer performance standards); see also 42 U.S.C. 6295(m)(4) (specifying applicable lead-times for a variety of different consumer products) and 42 U.S.C. 6295(l) (providing that energy conservation standards for newly covered products shall not apply to “products manufactured within five years after the publication of a final rule establishing such standard.”). The Department will adhere to that framework for all rules subject to this part.

This paragraph articulates the Department's conclusion that it may change a standard that it has posted but has not yet published in the Federal Register. A change pursuant to this process is permissible even if the effect of such a change is to increase the maximum energy use or decrease the energy efficiency that the standard would reflect.

The Department interprets section 325(o)(1) (and its analogs applicable to certain types of equipment) to permit this approach. These provisions prohibit DOE from “increas[ing] the maximum allowable energy use” or “decreas[ing] the minimum required energy efficiency.” However, they do not indicate unambiguously what are the relevant maximum “allowable” use and minimum “required” efficiency against which an amended standard should be compared. Applying these terms to refer only to rules published in the Federal Register is consistent with the Act and will further its purposes.

DOE notes that the Act uniformly sets compliance dates based on the “publication” of rules.2 For example, for certain consumer products, compliance with an amended standard is required for products manufactured three years after publication; for others, compliance is required five years after an amended standard is published. 42 U.S.C. 6295(m)(4). “Publication” does not appear to be simply the term used in the Act for producing a rule. For example, EPCA distinguishes issuance from publication by stating that DOE is to begin a rulemaking to review a standard within six years after “issuance”—rather than “publication”—of the standard. 42 U.S.C. 6295(m)(1).

Thus, “publication,” rather than other steps involved in rulemaking, is the trigger for eventual manufacturer compliance. A manufacturer can lawfully make products that do not meet the amended standards until the compliance date, and until the rule has been published there is not even a date certain at which a manufacturer will have to comply.

Besides being consistent with the text and structure of EPCA, the Department's interpretation furthers the Act's purposes. DOE understands the overall purpose of the Act's standards provisions to be achieving an increase, over time, in the conservation of energy in the United States. Other goals of EPCA include mitigating adverse economic consequences that energy conservation can sometimes cause, and reducing the costs of the changes required to increase conservation. Those goals are revealed in multiple provisions, such as those that set compliance dates several years after publication of amended standards.

If the Department made an error in the regulatory text of a rule, and that error had the effect of increasing a standard beyond what the Department had concluded—after reasoned deliberations—was appropriate, the error-correction process set forth in this document would permit the Department to correct it. For section 325(o) to prohibit that result would undermine the multiple goals of EPCA. Were an erroneous standard to remain in place, its economic costs might be higher than what DOE had concluded could be justified, at that time, by the resulting energy savings or the standard might be technologically infeasible. That outcome would be inconsistent with EPCA's requirement to ensure that a standard be one that the Secretary determines is “economically justified,” and it could itself lead to uncertainty (e.g., legal challenge to the standard), which would be likely to generate further economic costs. And, contrary to the purposes of EPCA identified above, the outcome might include the invalidation of the standard—or the entire final rule—by a court, thereby leaving the Nation with no new standard that would have provided the increased energy savings DOE had intended to provide until completion of a replacement rulemaking by DOE, which could take considerable time. In contrast, the error-correction process set forth in this rule allows DOE to align the text of its regulations with the assessment it has already made of what standard would be appropriate—and ultimately achieve the significant energy savings that the Secretary determines are economically justified and technologically feasible as mandated by the Act. Accordingly, in DOE's view, section 325(o) permits the Department to correct an error in the text of a rule in the manner prescribed in this rule.

This section clarifies the timing related to a potential petition for review that a person may file pursuant to 42 U.S.C. 6306. The section states that a rule is prescribed on the date of its publication in the Federal Register. Accordingly, for purposes of filing a legal challenge regarding an energy conservation standard rule, the date of publication in the Federal Register must be used when determining whether a given petition for review is timely in accordance with the statute.

This rule of agency procedure and practice is not subject the requirement to provide prior notice and an opportunity for public comment pursuant to authority at 5 U.S.C. 553(b)(A). The Administrative Procedure Act's exception to the notice-and-comment rulemaking requirement for rules of agency procedure and practice reflects Congress's judgment that such rules typically do not significantly benefit from notice-and-comment procedures, and that judgment is particularly applicable here, where the agency perceives no specific need for notice and comment. In addition, DOE has concluded that seeking comment on this rule would inappropriately divert valuable agency resources from other rulemakings that Congress has directed DOE to complete according to certain statutory timelines.

This rule is also not a substantive rule subject to a 30-day delay in effective date pursuant to 5 U.S.C. 553(d).

This regulatory action is not a “significant regulatory action” under section 3(f) of Executive Order 12866. Accordingly, this action was not subject to review under that Executive Order by the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget (OMB). DOE has also reviewed this regulation pursuant to Executive Order 13563, issued on January 18, 2011. 76 FR 3281 (January 21, 2011). EO 13563 is supplemental to and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. As a result, EO 13563 also does not apply to this rule.

The Regulatory Flexibility Act (5 U.S.C. 601, et seq.) requires preparation of an initial regulatory flexibility analysis (IRFA) for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. Because this rule is not subject to the requirement to provide prior notice and an opportunity for public comment, it is not subject to the analytical requirements of the Regulatory Flexibility Act.

This rule does not contain a collection of information for purposes of the Paperwork Reduction Act.

DOE has determined that this rule falls into a class of actions that are categorically excluded from review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and DOE's implementing regulations at 10 CFR part 1021. Specifically, this rule is strictly procedural and is covered by the Categorical Exclusion in 10 CFR part 1021, subpart D, paragraph A6. Accordingly, neither an environmental assessment nor an environmental impact statement is required.

Executive Order 13132, “Federalism,” 64 FR 43255 (Aug. 10, 1999), imposes certain requirements on Federal agencies formulating and implementing policies or regulations that preempt State law or that have Federalism implications. The Executive Order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive Order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations. 65 FR 13735. DOE examined this final rule and determined that it 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. EPCA governs and prescribes Federal preemption of State regulations as to energy conservation for the equipment that are the subject of this final rule. States can petition DOE for exemption from such preemption to the extent, and based on criteria, set forth in EPCA. (42 U.S.C. 6297(d)) No further action is required by Executive Order 13132.

With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” imposes on Federal agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; and (3) provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. 61 FR 4729 (Feb. 7, 1996). Section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, this rule meets the relevant standards of Executive Order 12988.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531). For a regulatory action resulting in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a proposed “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect small governments. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. 62 FR 12820; also available at http://energy.gov/gc/office-general-counsel. DOE examined this final rule according to UMRA and its statement of policy and determined that the rule contains neither an intergovernmental mandate, nor a mandate that may result in the expenditure of $100 million or more in any year, so these requirements do not apply.

Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This rule will not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.

DOE has determined, under Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights,” 53 FR 8859 (Mar. 18, 1988),that this regulation would not result in any takings that might require compensation under the Fifth Amendment to the U.S. Constitution.

Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516, note) provides for Federal agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). DOE has reviewed this final rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.

Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to OIRA at OMB, a Statement of Energy Effects for any significant energy action. A “significant energy action” is defined as any action by an agency that promulgated or is expected to lead to promulgation of a final rule, and that: (1) Is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (3) is designated by the Administrator of OIRA as a significant energy action. For any significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use if the regulation is implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use.

This final rule is not a significant energy action because the ability to correct regulations will not, in itself, have a significant adverse effect on the supply, distribution, or use of energy. Moreover, it would not have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated as a significant energy action by the Administrator of OIRA. Therefore, it is not a significant energy action, and, accordingly, DOE has not prepared a Statement of Energy Effects.

As required by 5 U.S.C. 801, DOE will report to Congress on the promulgation of this rule before its effective date. The report will state that it has been determined that the rule is not a “major rule” as defined by 5 U.S.C. 804(2).

The Secretary of Energy has approved publication of this final rule.

For the reasons set forth in the preamble, DOE amends parts 430 and 431 of Chapter II of title 10 of the Code of Federal Regulations as set forth below:

Electronic Access

This final rule is accessible via the Internet at the Office of the Federal Register Web site at https://www.federalregister.gov. Background information and documents are available at the NMFS West Coast Region Web site at http://www.westcoast.fisheries.noaa.gov/fisheries/groundfish/index.html and at the Pacific Fishery Management Council's Web site at http://www.pcouncil.org/.

An at-sea scale program was developed for the Alaska groundfish fishery in 1998 to provide catch accounting that was more precise and verifiable at the individual haul level and less dependent on estimates generated by at-sea observers (February 4, 1998; 63 FR 5836). The at-sea scale program supported implementation of a large-scale quota share program that required verifiable and defensible estimates of harvest. Since implemenation of those weighing requirements in 1998, at-sea scales have been used to provide reliable, precise and accurate estimates of catch in the Alaskan groundfish fisheries. At the same time, scale technology has evolved and NMFS has developed greater expertise in monitoring processing activity.

Recent fraud on some vessels was found to have resulted in systematic underestimates of scale weights used for catch accounting. As a result, at-sea flow scale regulations for the Alaska Region at 50 CFR 679.28 were revised on December 18, 2014 (November 18, 2014; 79 FR 68610) to improve scale accuracy and reduce bias. Revisions to the Alaska regulations included a suite of modifications to the at-sea scales program that included the use of flow scales capable of logging and printing the frequency and magnitude of scale calibrations relative to previous calibrations as well as the time and date of each scale fault (or error) and scale startup time; revised daily scale test methods; and new requirements for video monitoring.

In 2011, a trawl rationalization program was implemented for the Pacific Coast groundfish fishery which included scale requirements specified in regulation at § 660.15(b) (December 15, 2010; 75 FR 78344). These regulations require mothership and catcher/processor vessels to use scales certified for the Alaska groundfish fisheries. This action modifies the Pacific Coast groundfish fishery regulations to be consistent with the Alaska Region's 2014 regulation updates, thereby bringing them up to date with current technology, reducing the potential for scale tampering, and improving catch accounting accuracy. Catch estimates based on inaccurate scale weights could systematically underestimate harvests. Given the importance of using accurate and reliable catch accounting data for management of the groundfish stocks, NMFS is implementing revisions consistent with the revisions made for the Alaska groundfish fishery, and with the intent of enforcement and monitoring provisions implemented under Amendment 20 to the Pacific Coast groundfish fishery management plan (FMP).

This final rule updates the requirements for scales consistent with Alaska regulations at § 679.28. Improved scale technology includes features that allow NMFS to determine how well the flow scales are performing, and improve the accuracy and reliability of flow scale measurements. Because the mothership and catcher/processor vessels already have upgraded scale systems for the Alaska Fisheries, and the scales are certified through annual testing provided by the Alaska Region, aligning the performance and technical requirements is reasonable and not expected to result in added costs to the vessels.

Regulatory revisions include improvements to daily scale tests. The types of material used for the daily scale test are limited to test materials (i.e., pre-weighed sand bags) supplied by the scale manufacturer or approved by a NMFS-authorized scale inspector. The minimum amount of weight for each test and the number of runs are stated in regulations. In addition, new requirements for documenting failed scale tests, and printing audit and calibration reports are specified.

Regulatory revisions require that all mothership and catcher/processors vessels use video monitoring systems that meet the Alaska fishery system requirements, specified at § 679.28(e), when they are fishing in the Pacific Coast groundfish fishery. The video monitoring systems allow the activities around the flow scale to be monitored to ensure that the flow scale is functioning properly (e.g., that the flow scale is not running while in a fault (error) state); ensure that all fish are being weighed; detect when crew members are working on the flow scale; and ensure that daily flow scale tests are being conducted on the required schedule and with the appropriate test weights. The video systems are required to capture imagery of areas where the catch enters, moves across, and leaves the scale; of any access points that may be adjusted or modified by crew; and of the scale display and the indicator of when the scale is operating in a fault state. Consistent with the Alaska requirements, the vessel operator is required to maintain the video imagery for at least 120 days and make the imagery available to NMFS upon request.

Regulations at § 660.15(c) define the performance and technical requirements for scales used to weigh fish at Shorebased IFQ first receivers. Since the Shorebased IFQ program was implemented in 2011, some Shorebased IFQ first receivers located in Oregon and Washington have installed flow scales. The states of Oregon and Washington test the flow scales consistent with national weights and measures standards. This action revises regulations to include performance and technical requirements for flow scales used at IFQ first receivers. In addition, several minor technical changes are made. The regulatory changes for first receivers include revisions to inseason scale test requirements specific to flow scales; adding catch monitors to the list of individuals that have access to scale displays and printouts; revisions to inseason scale test requirements specific to flow scales; and the correction of a value for maximum error in scale divisions.

Numerous minor changes are made throughout the regulations at 50 CFR 660.15, 660.113, 660.150 and 660.160 for clarity, to better align different sections of the regulations, to update cross references, and for consistency in the use of terms. Paragraph 660.15(a) is revised to remove reporting requirements that are repeated in other more appropriate sections of the regulations. Regulatory language originally adopted from the Alaska Groundfish fisheries is not consistent with language used for the Pacific Coast groundfish fishery; therefore, minor revisions are made to paragraph § 660.15(b) for clarity and to be consistent with other sections of the Pacific Coast groundfish regulations. Minor changes are made at § 660.15(c) to revise terms for consistent use throughout the regulations. Minor changes are made at § 660.113 to revise terms for consistent use throughout the regulations and to update cross references. Minor changes are made at §§ 660.150(b) and 660.160(b) to revise terms for consistent use throughout the regulations, and update cross references, to add missing references for cease fishing reports and to add clarity to the vessel responsibilities relative to observer platform scale.

NMFS published a proposed rule for this action on January 19, 2016 (81 FR 2831). The comment period for the proposed rule ended on February 18, 2016, and no comments were received. Therefore, no changes were made from the proposed rule in response to comments.

Section 3507(c)(B)(i) of the PRA requires that agencies inventory and display a current control number assigned by the Director, Office of Management and Budget (OMB), for each agency information collection. Section 902.1(b) identifies the location of NOAA regulations for which OMB approval numbers have been issued. Because this final rule adds requirements for scale test report recording and maintenance, 15 CFR 902.1(b) is revised to reference correctly the section resulting from this final rule.

NMFS has determined that this action is consistent with the FMP, the Magnuson Stevens Conservation and Management Act, and other applicable laws.

The Office of Management and Budget has determined that this action is not significant for purposes of Executive Order 12866.

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 this certification, and NMFS has not received any new information that would affect its determination. As a result, a final regulatory flexibility analysis is not required, and none has been prepared.

This final rule contains a collection-of-information requirement subject to review and approval by OMB under the Paperwork Reduction Act (PRA). This requirement has been approved by OMB as revisions to OMB collection 0648-0619. The public reporting burden for the at-sea scale requirements, including daily test reports (30 minute per response), daily catch and cumulative weight reports (10 min per response), the audit trail (1 minute per response), calibration log (1 minute per response), fault log (1 minute per response) and video monitoring (0 minute per response), is estimated to average 43 minutes per response. Send comments on the burden estimate or any other aspects of the collection of information to West Coast Region at the ADDRESSES above, and by email to [email protected] or fax to (202) 395-7285.

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.

For the reasons set out in the preamble, 15 CFR part 902 and 50 CFR part 660 are amended as follows:

Background

This document contains amendments to the Income Tax Regulations (26 CFR part 1) under section 432(e)(9) of the Internal Revenue Code (Code), as amended by section 201 of the Multiemployer Pension Reform Act of 2014, Division O of the Consolidated and Further Continuing Appropriations Act, 2015, Public Law 113-235 (128 Stat. 2130 (2014)) (MPRA).1 As amended, section 432(e)(9) permits plan sponsors of certain multiemployer plans to reduce the plan benefits payable to participants and beneficiaries by plan amendment (referred to in the statute as a “suspension of benefits”) if specified conditions are satisfied. A plan sponsor that seeks to implement a suspension of benefits must submit an application for approval of that suspension to the Secretary of the Treasury. The Secretary of the Treasury, in consultation with the Pension Benefit Guaranty Corporation and the Secretary of Labor (generally referred to in this preamble as the Treasury Department, PBGC, and Labor Department, respectively), is required by the statute to approve the application upon finding that certain specified conditions are satisfied.

One condition, set forth in section 432(e)(9)(D)(vii), is a specific limitation on how a suspension of benefits must be applied under a plan that includes benefits that are directly attributable to a participant's service with any employer described in section 432(e)(9)(D)(vii)(III). An employer is described in section 432(e)(9)(D)(vii)(III) if the employer has, prior to the date MPRA was enacted (December 16, 2014): (1) Withdrawn from the plan in a complete withdrawal under section 4203 of ERISA; (2) paid the full amount of the employer's withdrawal liability under section 4201(b)(1) of ERISA or an agreement with the plan; and (3) pursuant to a collective bargaining agreement, assumed liability for providing benefits to participants and beneficiaries of the plan under a separate, single-employer plan sponsored by the employer, in an amount equal to any amount of benefits for these participants and beneficiaries reduced as a result of the financial status of the plan. Such an employer is referred to in this preamble as a “subclause III employer,” and a collective bargaining agreement under which the employer assumes liability for those benefits is referred to as a “make-whole agreement.”

If section 432(e)(9)(D)(vii) applies to a plan then, under section 432(e)(9)(D)(vii)(I), the suspension of benefits must first be applied to the maximum extent permissible to benefits attributable to a participant's service with an employer that withdrew from the plan and failed to pay (or is delinquent with respect to paying) the full amount of its withdrawal liability under section 4201(b)(1) of ERISA or an agreement with the plan. Such an employer is referred to in this preamble as a “subclause I employer.” Second, under section 432(e)(9)(D)(vii)(II), except as provided in section 432(e)(9)(D)(vii)(III), a suspension of benefits must be applied to all other benefits under the plan that may be suspended. Third, under section 432(e)(9)(D)(vii)(III), a suspension must be applied to benefits under the plan that are directly attributable to a participant's service with a subclause III employer. An employer under the plan is referred to in this preamble as a “subclause II employer” if it is neither a subclause I employer nor a subclause III employer.

On October 23, 2015, the Treasury Department published a notice in the Federal Register (80 FR 64508) regarding an application for a proposed suspension of benefits, which represented that the plan is of the type to which section 432(e)(9)(D)(vii) applies. The notice requested public comments on all aspects of the application, including with respect to the interpretation of section 432(e)(9)(D)(vii) that is reflected in the application.

On February 11, 2016, the Treasury Department and the IRS published proposed regulations (REG-101701-16) regarding the specific limitation on a suspension of benefits under section 432(e)(9)(D)(vii) in the Federal Register at 81 FR 7253. Comments were received on the proposed regulations and a public hearing was held on March 22, 2016.

After consideration of the written comments received and the oral comments presented at the public hearing, the provisions of the proposed regulations are adopted as revised by this Treasury decision. The Treasury Department consulted with PBGC and the Labor Department in developing these regulations.2

These regulations amend the Income Tax Regulations (26 CFR part 1) to provide guidance regarding section 432(e)(9)(D)(vii). Section 432(e)(9)(D)(vii) sets forth a rule that limits how a suspension may be applied under a plan that includes benefits that are directly attributable to a participant's service with a subclause III employer. In determining how a suspension should be allocated consistent with MPRA's framework and purpose, the Treasury Department and the IRS analyzed the statute and applied well-established principles of statutory construction to interpret section 432(e)(9)(D)(vii). In so doing, the Treasury Department and the IRS interpreted section 432(e)(9)(D)(vii) in the context of section 432(e)(9) as a whole, which requires, among other things, that any suspension be subject to certain limitations, including that the suspension be equitably distributed across the participant and beneficiary population.

Subclause (I) of section 432(e)(9)(D)(vii) provides that the suspension of benefits must first be applied “to the maximum extent permissible” to benefits attributable to service with a subclause I employer (referred to in this preamble as “subclause I benefits”). Accordingly, the proposed regulations provided that, for a plan that is subject to section 432(e)(9)(D)(vii), a suspension of benefits must be applied to the maximum extent permissible to subclause I benefits before reductions are permitted to be applied to any other benefits. Under the proposed regulations, only if such a suspension is not reasonably estimated to achieve the level that is necessary to enable the plan to avoid insolvency may a suspension then be applied to other benefits that are permitted to be suspended and that are attributable to a participant's service with other employers. No commenters objected to this provision of the proposed regulations, and these final regulations adopt this provision as proposed.

In contrast to subclause (I) of section 432(e)(9)(D)(vii), subclause (II) does not include the phrase “to the maximum extent permissible.” Accordingly, the Treasury Department and the IRS developed the rules in the proposed regulations based on the interpretation that a suspension need not be applied to the maximum extent permissible to benefits described in subclause (II) before any suspension is applied to benefits described in subclause (III).

A number of commenters expressed views regarding the rules under the proposed regulations describing how the suspension of benefits is permitted to apply to benefits attributable to service with a subclause II employer (referred to in this preamble as “subclause II benefits”) and benefits directly attributable to service with a subclause III employer (referred to in this preamble as “subclause III benefits”). Many of these commenters agreed with the analysis set forth in the preamble to the proposed regulations and supported an interpretation of the statute that subclause II benefits are not required to be reduced to the maximum extent permissible before any subclause III benefits can be reduced.

Two commenters advocated that the statute be interpreted to require that subclause II benefits be suspended to the maximum extent permissible before a suspension is permitted to apply to any subclause III benefits. These commenters maintained that this result is required by the ordinal numbering of the three subclauses and asserted that Congress intended to favor any withdrawing employer that not only paid the full amount of its withdrawal liability but also entered into a make-whole agreement. If such an approach were applied under section 432(e)(9)(D)(vii), then the benefits described in each of the first two subclauses would be required to be suspended to the maximum extent permissible before any suspension could apply to benefits described in the successive subclause. Under that approach, subclause III benefits would be permitted to be suspended only if all benefits attributable to participants' service with all subclause I and subclause II employers were suspended to the maximum extent permissible. In support of this position, one commenter asserted that the Treasury Department and the IRS misinterpreted the import of the absence of the phrase “to the maximum extent permissible” in subclause (II). This commenter asserted that the combined use in subclause (II) of “second,” “except as provided by subclause (III),” and “all other benefits” has the same effect with respect to subclause II benefits as the use in subclause (I) of “to the maximum extent permissible” has with respect to subclause I benefits. This commenter argued that the difference in language between subclause (I) and subclause (II) does not prevent the two rules from having the same effect, and cited to Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. ___, 133 S. Ct. 1351, 1364 (2013) in support of this argument.

After carefully considering this argument and applicable authorities, the Treasury Department and the IRS have concluded that this interpretation is incorrect; the statute does not require subclause II benefits to be suspended to the maximum extent permissible before any subclause III benefits are permitted to be suspended, and the rule set forth in the proposed regulations is the correct interpretation of the statute. Applicable case law establishes that a difference in language between one statutory provision and the next immediately following provision should be given meaning. See Loughrin v. United States, 573 U.S. __,134 S. Ct. 2384, 2390 (2014) (“We have often noted that when `Congress includes particular language in one section of a statute but omits it in another'—let alone in the very next provision—this Court `presume[s]' that Congress intended a difference in meaning.” (quoting Russello v. United States, 464 U.S. 16, 23 (1983)). To read subclause (II) to require that subclause II benefits be suspended “to the maximum extent permissible” even though that language does not appear in subclause (II) would effectively rewrite the statute either by moving the phrase the “to the maximum extent permissible” from subclause (I) to the introductory language of section 432(e)(9)(D)(vii) or by adding it to subclause (II).3 The interpretation in the proposed regulations is also consistent with the language in subclause (II) (“except as provided in subclause (III)”), which contemplates a coordinated application of two provisions that are to be applied “second” and “third;” this language in subclause (II) is not consistent with an interpretation that requires application of a suspension to subclause II benefits that is independent of (and entirely preceding) the application of the suspension to subclause III benefits.

Kirtsaeng, which the one commenter cited to contest this interpretation in the proposed regulations, involved two phrases that “mean roughly the same thing.” Id. at 1358-59, 1364 (“The language of [the relevant statute] read literally favors [petitioner's] interpretation, namely, that `lawfully made under this title' means made `in accordance with' or `in compliance with' the Copyright Act.”). There are no “roughly” similar phrases across subclauses (I) and (II). Kirtsaeng is therefore inapposite.4

The Treasury Department and the IRS recognize that the language of section 432(e)(9)(D)(vii) bears some similarity to other statutory provisions that establish priority categories requiring claims to be fully satisfied under each earlier category before any claims are permitted to be satisfied under any subsequent category—for example, section 4044(a) of ERISA and sections 507(a) and 726(a) and (c) of the Bankruptcy Code, which in each instance prescribes ordering rules relating to the distribution of limited assets. However, in contrast to the language in section 432(e)(9)(D)(vii), these other statutory provisions do not include language in one category instructing that the category must be fully exhausted before reaching the next category, while omitting that language in other categories. Furthermore, if the ordinal numbering of section 432(e)(9)(D)(vii) were to be interpreted to require that each category be fully exhausted before reaching the next category, then the phrase “to the maximum extent permissible” in subclause (I) would not serve any purpose and would be superfluous.5

The broad scope of benefits included in subclause (III) further supports the conclusion that a suspension need not be applied to the maximum extent permissible to subclause II benefits before any suspension is applied to subclause III benefits. As explained in Section D of this preamble, subclause III benefits include all benefits that are directly attributable to service with a subclause III employer, without regard to whether those benefits are subject to a make-whole agreement. If subclause II benefits were required to be reduced to the maximum extent permissible before any subclause III benefits could be reduced (including subclause III benefits not subject to a make-whole agreement), then participants with subclause III benefits who are not subject to the make-whole agreement could experience significantly smaller reductions than participants with subclause II benefits (including benefits attributable to service with employers that never withdrew from the plan), without regard to whether that difference is consistent with the equitable distribution requirement.

For these reasons, these final regulations adopt the rule under the proposed regulations that subclause II benefits are not required to be suspended “to the maximum extent permissible” before any suspension is permitted to be applied to subclause III benefits.

In order to give effect to the requirement that a suspension of benefits be applied “second” to subclause II benefits and “third” to subclause III benefits, the proposed regulations provided that a suspension would not be permitted to reduce subclause III benefits unless subclause II benefits were reduced to at least the same extent as subclause III benefits were reduced. Under the proposed regulations, this limitation would be satisfied if no participant's benefits that are directly attributable to service with a subclause III employer were reduced more than that participant's benefits would have been reduced if, holding constant the benefit formula, work history, and all relevant factors used to compute benefits, those benefits were attributable to service with any other employer. The effect of the proposed rule is to protect a subclause III employer from the possibility that the suspension would be expressly designed to take advantage of the employer's commitment to make participants and beneficiaries whole for the reductions.

Most commenters agreed with the analysis set forth in the preamble to the proposed regulations and supported the rule that a suspension would not be permitted to reduce subclause III benefits unless subclause II benefits are reduced to at least the same extent. However, one commenter maintained that, if the Treasury Department and the IRS were to adopt the rule set forth in the proposed regulations intended to protect a subclause III employer, then the rule should be modified to prohibit facially neutral suspension provisions that have a disparate impact on subclause III benefits or that are intentionally designed to produce such an impact. Under such a rule, a suspension of benefits that disproportionally reduces subclause III benefits in the aggregate relative to subclause II benefits in the aggregate would be prohibited under section 432(e)(9)(D)(vii) even if the suspension does not by its terms treat individuals with subclause III benefits in a less favorable manner than similarly situated individuals with subclause II benefits.

Nothing in the statute or preexisting case law requires the application of a disparate impact standard. Both Congress and the Supreme Court have required such a standard only in the unique context in which “barriers operate invidiously to discriminate on the basis of racial or other impermissible classification,” Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971); see, e.g., 42 U.S.C. 2000e-2(k)(1)(A)(i) (prohibiting “a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin”); see also Texas Department of Housing and Community Affairs, et al., v. Inclusive Communities Project, Inc., et al., 576 U. S. ___, 135 S. Ct. 2507, 2513 (2015) (“a disparate-impact claim challenges practices that have a `disproportionately adverse effect on minorities' and are otherwise unjustified by a legitimate rationale”). Those unique circumstances are not present here.

After considering the public comments, the Treasury Department and the IRS have determined that the rule set forth in the proposed regulations appropriately protects a subclause III employer from the possibility that the suspension would be expressly designed to take advantage of the employer's commitment to make participants and beneficiaries whole for the reductions in a manner that is most consistent with all of the statutory language.6 However, in response to comments identifying potential ambiguities in the proposed regulations, the application of this rule in the final regulations has been clarified. Accordingly, these final regulations provide that a suspension does not violate the required relationship between subclause III benefits and subclause II benefits if no individual's benefits that are subclause III benefits are reduced more than that individual's benefits would have been reduced if, holding constant the benefit formula, work history, and all other relevant factors used to determine the individual's benefits, those benefits were attributable to service with any other employer.

The proposed regulations provided that the benefits described in section 432(e)(9)(D)(vii)(III) are any benefits that are directly attributable to a participant's service with a subclause III employer, without regard to whether the employer has assumed liability for providing benefits to the participant or beneficiary that were reduced as a result of the financial status of the plan. For example, if, before the date a subclause III employer entered into a make-whole agreement, a participant commenced receiving retirement benefits under a plan that are directly attributable to service with that employer, then the participant's benefits would be described in section 432(e)(9)(D)(vii)(III) even if those benefits were not covered by the make-whole agreement. This interpretation is based on the statutory language in section 432(e)(9)(D)(vii)(III), which defines the benefits to which that subclause applies as those benefits that are directly attributable to service with an employer that has met the conditions set forth in section 432(e)(9)(D)(vii)(III)(aa) and (bb). In other words, the statutory provision refers to benefits directly attributable to service with an employer described in subclause (III) and not only to benefits covered by the make-whole agreement.

Some of the commenters on the proposed regulations expressed views regarding whether subclause III benefits should include benefits that are not covered by a make-whole agreement. Two commenters supported the rule set forth in the proposed regulations, under which subclause III benefits include all benefits directly attributable to service with a subclause III employer. Two other commenters expressed the view that subclause III benefits include only benefits that are covered by a make-whole agreement. The latter two commenters asserted that Congress included this provision in order to prevent a suspension from unreasonably shifting costs onto an employer that had entered into a make-whole agreement, and that this Congressional intent suggests that only benefits subject to the make-whole agreement were intended to be protected. They also noted that interpreting this provision to include benefits that are not covered by a make-whole agreement could result in benefits for many participants being covered under subclause III even if an employer entered into a make-whole agreement covering only a few participants, and argued that Congress did not intend such a result.

After considering the public comments, the Treasury Department and the IRS remain convinced that the rule set forth in the proposed regulations reflects the plain language of the statute. The statute defines subclause III benefits as benefits attributable to service with a subclause III employer, not benefits covered by a make-whole agreement. Furthermore, the ability of an employer to take advantage of this interpretation by entering into a make-whole agreement that covers only a few participants is limited by the fact that subclause (III) applies only if all the conditions of subclause (III) (including the condition that the employer enter into a make-whole agreement) were satisfied prior to December 16, 2014 (the date of enactment of MPRA). Because this date has passed, there is no cause for concern that an employer could plan to become a subclause (III) employer. Accordingly, these regulations adopt the rule set forth in the proposed regulations under which subclause III benefits include all benefits attributable to a participant's service with a subclause III employer without regard to whether the participant or beneficiary is covered by a make-whole agreement.

These regulations apply to suspensions for which the approval or denial is issued on or after April 26, 2016. In the case of a systemically important plan, these regulations apply with respect to any modified suspension implemented on or after April 26, 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 also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations.

The Regulatory Flexibility Act (RFA) (5 U.S.C. chapter 6) requires an agency to consider whether the rules it proposes will have a significant economic impact on a substantial number of small entities. In this case, the IRS and the Treasury Department believe that the regulations likely would not have a “significant economic impact on a substantial number of small entities.” 5 U.S.C. 605. This certification is based on the fact that the number of small entities affected by this rule is unlikely to be substantial because it is unlikely that a substantial number of small multiemployer plans in critical and declining status are subject to the limitation contained in section 432(e)(9)(D)(vii). Pursuant to section 7805(f) of the Code, the notice of proposed rulemaking preceding these regulations was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.

For general questions regarding these regulations, please contact the Department of the Treasury MPRA guidance information line at (202) 622-1559 (not a toll-free number). For information regarding a specific application for a suspension of benefits, please contact the Treasury Department at (202) 622-1534 (not a toll-free number).

Accordingly, 26 CFR part 1 is amended as follows:

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

On December 12, 1967, the Coast Guard published a final rule (32 FR 17726, 17749) establishing an anchorage ground on the Delaware River in Philadelphia, Pennsylvania in 33 CFR part 110. The anchorage ground established is contained in 33 CFR 110.157(a)(11). The anchorage currently remains unused by the Navy Yard. Removing the restrictions on anchorage “10” will alleviate congestion within the port, allowing the anchorage to be used as a general anchorage for commercial traffic.

On January 5, 2016, the Coast Guard published a notice of proposed rulemaking (NPRM) titled Anchorage Regulations, Delaware River; Philadelphia, PA (81 FR 194). It proposed to change the shape and the dimensions of anchorage “10”, and to remove the “restricted naval anchorage” verbiage from § 110.157(a)(11). We invited comments on this proposed change. During the comment period that ended February 4, 2016, we received no public comments, but we did receive a comment from National Oceanic and Atmospheric Administration (NOAA) which we discuss below.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 471, 1221 through 1236, and 2071; and in 33 CFR 1.05-1.

This rule changes the shape and the dimensions of anchorage “10.” The anchorage currently remains unused by the Navy Yard. Removing the restrictions on anchorage “10” will alleviate congestion within the port by allowing the anchorage to be used as a general anchorage ground for commercial traffic.

As noted above, we received no public comments on our NPRM published January 5, 2016. Based on comments from NOAA, however, we make two changes in the regulatory text of this rule from our proposed.

The first change identifies the horizontal reference datum for the latitudes and longitudes of the boundaries of the anchorage grounds as the World Geodetic System 1984 (WGS 84). The second change replaces the verbiage “West Horseshoe Range” with “Eagle Point Range” within the anchorage rule text. The original anchorage regulation, 33 CFR 110.157(a)(11) Anchorage 10, uses “West Horseshoe Range” as a boundary reference, however, the National Oceanic and Atmospheric Administration (NOAA) Nautical Charts identifies the range as “Eagle Point Range”. Therefore, we changed the boundary reference in our rule from “West Horseshoe Range” to “Eagle Point Range.”

The revised anchorage ground runs parallel to the north side of the channel along Eagle Point range, is narrower north to south, and is slightly longer east to west than the existing anchorage ground. Additionally, as proposed, we removed the “restricted naval anchorage” verbiage from the regulation. This permits commercial and other vessels to anchor within its bounds. The regulatory text appears at the end of this document.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders.

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

This rule is not a significant regulatory action because it will not interfere with existing maritime activity on the Delaware River. Moreover, it enhances navigational safety along the Delaware River by providing an additional anchorage for commercial and recreational vessels. The anchorage maintains the same parallel distance along the channel boundaries as the existing anchorage. The impacts to navigational safety are expected to be minimal because the anchorage area will not unnecessarily restrict traffic, as it is located outside of the established navigation channel. Vessels may navigate in, around, and through the anchorage.

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

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

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

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

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order13132.

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

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves the alteration of the size and use of anchorage “10,” restricted Naval Anchorage. It is categorically excluded from further review under paragraph 34(f) of Figure 2-1 of Commandant Instruction M16475.lD. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 110 as follows:

Throughout this document whenever “we,” “us,” or “our” is used, it is intended to refer to the EPA.

In a notice of proposed rulemaking published on February 12, 2016 (81 FR 7489), the EPA proposed to find that the Idaho SIP adequately addressed the interstate transport requirements of CAA section 110(a)(2)(D)(i)(I) for the 2010 NO2 NAAQS. Please see our February 12, 2016, proposed rulemaking for further explanation and the basis for our finding. The public comment period for the proposed rule ended on March 14, 2016, and we received one comment.

Comment: The commenter stated that the implementation of this law is crucial in Idaho because of the pollution coming from farming communities and cities and suggested lowering the allowed NO2 standard because of the small population of people that live in Idaho, when compared to Utah. The commenter proposed that the amount of pollution produced by each person should be made a standard and that companies should be held accountable for the pollution they produce. Although the commenter supports approval, the commenter believes that the law should have stricter requirements.

Response: Under section 110 of the CAA, states are responsible for developing provisions to address air pollution for incorporation into the SIP. The EPA's role is to evaluate these state choices to determine if the revisions meet the requirements of the CAA. The EPA must approve state submissions so long as they meet the minimum requirements established by the CAA. Union Electric Co. v. EPA, 427 U.S. 246 (1976). In this case, the state's submission included provisions selected by Idaho for inclusion in its SIP to meet the CAA section 110(a)(2)(D)(i)(I) interstate transport requirements for the 2010 NO2 NAAQS. The commenter does not suggest that the state's submission does not meet the applicable requirements. We have determined that the state's submission met those requirements, and thus we are approving the SIP. States have authority to adopt or enforce standards or requirements for the control or abatement of air pollution (except as specifically limited by the CAA) under section 116 of the CAA, so we provided a copy of the comment to Idaho Department of Environmental Quality for consideration during future state rulemaking, but we are otherwise taking no further action in response to the comment.

The EPA finds that the Idaho SIP meets the interstate transport requirements of CAA section 110(a)(2)(D)(i)(I) for the 2010 NO2 NAAQS. This action is being taken under section 110 of the CAA.

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 5, 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)).

For the reasons set forth in the preamble, 40 CFR part 52 is amended as follows:

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

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl. To access the OCSPP test guidelines referenced in this document electronically, please go to http://www.epa.gov/ocspp and select “Test Methods and Guidelines.”

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2015-0324 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before July 5, 2016. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2015-0324, by one of the following methods:

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

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

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

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

In the Federal Register of August 26, 2015 (80 FR 51759) (FRL-9931-74), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 5F8344) by BASF Corporation, 26 Davis Drive, Research Triangle Park, NC 27709. The petition requested that 40 CFR 180.666 be amended by establishing tolerances for residues of the fungicide fluxapyroxad, in or on citrus, dried pulp at 2.7 parts per million (ppm); citrus oil at 19 ppm; fruit, citrus group 10-10 at 1.0 ppm; grass forage, fodder and hay group 17 at 30 ppm; non-grass animal feed, group 18 at 30 ppm; and poultry, fat at 0.005 ppm. The petition also requested that the existing tolerance for residues of fluxapyroxad on egg be amended from 0.002 ppm to 0.01 ppm and that the tolerance for inadvertent residues of fluxapyroxad on nongrass animal feeds, group 18 at 0.3 ppm be removed upon establishment of the superceding group 18 tolerance. That document referenced a summary of the petition prepared by BASF Corporation, the registrant, which is available in the docket, http://www.regulations.gov. There were no comments received in response to the notice of filing.

Based upon review of the data supporting the petition, EPA has recommended tolerances for poultry meat, poultry meat byproduct, and milk fat for which there were no established tolerances previously due to low dietary burden and falling under category 3 of CFR 180.6(a). The reason for these changes are explained in Unit IV.D.

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

Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for fluxapyroxad including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with fluxapyroxad follows.

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

Fluxapyroxad is of low acute toxicity by the oral, dermal and inhalation routes, is not irritating to the eyes and skin, and is not a dermal sensitizer. The primary target organ for fluxapyroxad exposure via the oral route is the liver with secondary toxicity in the thyroid for rats only. Liver toxicity was observed in rats, mice, and dogs, with rats as the most sensitive species for all durations of exposure. In rats, adaptive effects of hepatocellular hypertrophy and increased liver weights and changes in liver enzyme activities were first observed. As the dose or duration of exposure to fluxapyroxad increased, clinical chemistry changes related to liver function also occurred, followed by hepatocellular necrosis, neoplastic changes in the liver, and tumors. Thyroid effects were observed only in rats. These effects were secondary to changes in liver enzyme regulation, which increased metabolism of thyroid hormone, resulting in changes in thyroid hormones, thyroid follicular hypertrophy and hyperplasia, and thyroid tumor formation. Tumors were not observed in species other than rats or in organs other than the liver and thyroid.

Fluxapyroxad is classified as “Not likely to be Carcinogenic to Humans” based on convincing evidence that carcinogenic effects are not likely below a defined dose range. There is no mutagenicity concern from in vivo or in vitro assays. The hypothesized mode of action (i.e., a non-genotoxic) for treatment related tumors (i.e., the liver and thyroid) was supported by a full panel of in vitro and in vivo studies that showed no evidence of genotoxicity, together with mechanistic studies in the liver and thyroid of rats that satisfied stringent criteria for establishing tumorigenic modes of action. The studies clearly identified the sequence of key events, dose-response concordance and temporal relationship to the tumor types. The Agency has determined that the chronic population adjusted dose (PAD) will adequately account for all chronic effects, including carcinogenicity that could result from exposure to fluxapyroxad because the points of departure (POD) for the chronic population adjusted dose (cPAD) is based on the most sensitive endpoint, liver effects. Effects in the liver preceded liver tumors and the effects observed in the thyroid (in rats only) were believed to be secondary to the liver effects.

No evidence of neurotoxicity was observed in response to repeated administration of fluxapyroxad. An acute neurotoxicity study showed decreased rearing and motor activity. This occurred on the day of dosing only and in the absence of histopathological effects or alterations in brain weights. This indicated that any neurotoxic effects of fluxapyroxad are likely to be transient and reversible due to alterations in neuropharmacology and not from neuronal damage. There were no neurotoxic effects observed in the subchronic dietary toxicity study. No evidence of reproductive toxicity was observed. Developmental effects observed in both rats and mice (thyroid follicular hypertrophy and hyperplasia in rats and decreased defecation, food consumption, body weight/body weight gain, and increased litter loss in rabbits) occurred at the same doses as those that caused adverse effects in maternal animals, indicating no quantitative susceptibility. Since the maternal toxicities of thyroid hormone perturbation in rats and systemic toxicity in rabbits likely contributed to the observed developmental effects there is low concern for qualitative susceptibility. An immunotoxicity study in mice showed no evidence of immunotoxic effects from fluxapyroxad.

Subchronic oral toxicity studies in rats, developmental toxicity studies in rabbits, and in vitro and in vivo genotoxicity studies were performed for fluxapyroxad metabolites F700F001, M700F002, and M700F048. Like fluxapyroxad, no genotoxic effects were observed for any of these metabolites. All three metabolites displayed lower subchronic toxicity via the oral route than fluxapyroxad, with evidence of non-specific toxicity (decreased body weight) observed only for M700F0048 at the limit dose. Only M700F0048 exhibited developmental toxicity at doses similar to those that caused developmental effects in rabbits with fluxapyroxad treatment. However, these effects (abortions and resorptions) were of a different nature than for fluxapyroxad (paw hyperflexion) and are considered secondary to maternal toxicity. The Agency considers these studies sufficient for hazard identification and characterization and concludes that these metabolites do not have hazards that exceed those of fluxapyroxad in nature, severity, or potency.

Specific information on the studies received and the nature of the adverse effects caused by fluxapyroxad as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov in document, “Human Health Risk Assessment for Use of Fluxaproxad on Citrus Crop Group 10-10, Grass Crop Group 17, and Non-Grass Crop Group 18.” on pp. 56 in docket ID number EPA-HQ-OPP-2012-0638.

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

Summary of the toxicological endpoints for used for human risk assessment is shown in Table 1 of this unit.

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2015-0213 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before July 5, 2016. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2015-0213, by one of the following methods:

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

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

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

In the Federal Register of May 20, 2015 (80 FR 28925) (FRL-9927-39), EPA issued a document pursuant to FFDCA section 408, 21 U.S.C. 346a, announcing the filing of a pesticide petition (PP IN-10760) by Keller and Heckman LLP, (1001 G Street NW., Suite 500, Washington, DC 20001) on behalf of Cytec Industries, Inc. (5 Garret Mountain Plaza, Woodland Park, NJ 07424). The petition requested that 40 CFR 180.910 be amended by establishing an exemption from the requirement of a tolerance for residues of butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts (CAS Reg. No. 815583-91-6) when used as an inert ingredient (surfactant) in pesticide formulations applied to growing crops and raw agricultural commodities after harvest. That document referenced a summary of the petition prepared by Keller and Heckman LLP, on behalf of Cytec Industries, Inc., the petitioner, which is available in the docket, http://www.regulations.gov. There were no comments received in response to the notice of filing.

Based upon review of the data supporting the petition, EPA has limited the maximum concentration of butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts to 10% by weight in pesticide formulations. This limitation is based on the Agency's risk assessment which can be found at http://www.regulations.gov in document “Butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts (CAS Reg No. 815583-91-6); Human Health Risk Assessment and Ecological Effects Assessment to Support Proposed Exemption from the Requirement of a Tolerance When Used as an Inert Ingredient in Pesticide Formulations” in docket ID number EPA-HQ-OPP-2015-0213.

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

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

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

Consistent with FFDCA section 408(c)(2)(A), and the factors specified in FFDCA section 408(c)(2)(B), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts including exposure resulting from the exemption established by this action. EPA's assessment of exposures and risks associated with butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts follows.

EPA has evaluated the available toxicity data and considered their validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Specific information on the studies received and the nature of the adverse effects caused by butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies are discussed in this unit.

Butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts is of low acute oral and dermal toxicity in rats. The acute oral and dermal LD50s are >1,600 milligram/kilogram (mg/kg). It is irritating to the eyes but not the skin of rabbits. Neither inhalation nor sensitization studies are available.

90-day oral toxicity studies are available in rats and dogs. In the rat, toxicity is manifested as decreased body weight and food efficiency at 4% (equivalent to 3,080 milligram/kilogram/day (mg/kg/day)) of butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts. In dogs, toxicity is manifested as testicular atrophy at 0.5% (equivalent to 125 mg/kg/day). The NOAEL in this study is 0.12% (equivalent to 30 mg/kg/day). The chronic reference dose (cRfD) is based on this study.

A combined reproductive and developmental study on rats is available with butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts. Quantitative fetal susceptibility is observed as reduced pup weight at 1% (equivalent to 750 mg/kg/day). Maternal toxicity is reported only with regard to reproduction toxicity and included a reduced number of viable embryos and live-born per litter, and reduced fertility, viability and lactation indices at 4% (equivalent to 3,000 mg/kg/day).

Butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts is not expected to be carcinogenic based on the absence of structural alerts using the Derek Nexus program and the lack of mutagenicity in two Ames tests.

Neurotoxicity and immunotoxicity studies with butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts are not available for review. However, no evidence of potential neurotoxicity or immunotoxicity is observed in the submitted studies.

Metabolism studies with butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts are not available for review. However, it is expected that these salts will readily hydrolyze (primarily in the intestine, blood and liver) by carboxylesterases resulting in the corresponding alcohol (C9-C l1 isoalkyl, Cl0 rich). The fatty alcohol is expected to be metabolized via normal metabolic pathways (oxidation, followed by normal fatty acid metabolism).

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

An acute effect was not found in the database therefore an acute dietary assessment was not conducted. The cRfD as well as all exposure scenarios was based on the 90-day oral toxicity study in the dog. In this study, the LOAEL was 0.5% (equivalent to 125 mg/kg/day) based on testicular atrophy in males. The NOAEL was 0.12% (equivalent to 30 mg/kg/day). This represents the lowest NOAEL in the most sensitive species in the toxicity database. The standard uncertainty factors were applied to account for interspecies (10x) and intraspecies (10x) variations. Default values of 100% absorption were used for the dermal and inhalation factors.

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts, EPA considered exposure under the proposed exemption from the requirement of a tolerance. EPA assessed dietary exposures from butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts in food as follows:

Dietary exposure (food and drinking water) to butanedioic acid, 2-sulfo-,C-C9-11-isoalkyl esters, C10-rich, disodium salts can occur following ingestion of foods with residues from treated crops. Because no adverse effects attributable to a single exposure of butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts are seen in the toxicity databases, an acute dietary risk assessment was not conducted. For the chronic dietary risk assessment, EPA used the Dietary Exposure Evaluation Model software with the Food Commodity Intake Database (DEEM-FCIDTM, Version 3.16, and food consumption information from the U.S. Department of Agriculture's (USDA's) 2003-2008 National Health and Nutrition Examination Survey, What We Eat in America (NHANES/WWEIA). As to residue levels in food, no residue data were submitted for butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts. In the absence of specific residue data, EPA has developed an approach which uses surrogate information to derive upper bound exposure estimates for the subject inert ingredient. Upper bound exposure estimates are based on the highest tolerance for a given commodity from a list of high use insecticides, herbicides, and fungicides. 100 percent crop treated (PCT), default processing factors, and tolerance-level residues were assumed for all foods, and the assessment incorporated the use limitation that the ingredient will be present in pesticide formulations at a concentration of not more than 10% by weight. A complete description of the general approach taken to assess inert ingredient risks in the absence of residue data is contained in the memorandum entitled “Alkyl Amines Polyalkoxylates (Cluster 4): Acute and Chronic Aggregate (Food and Drinking Water) Dietary Exposure and Risk Assessments for the Inerts,” (D361707, S. Piper, 2/25/09) and can be found at http://www.regulations.gov in docket ID number EPA-HQ-OPP-2008-0738.

2. Dietary exposure from drinking water. For the purpose of the screening level dietary risk assessment to support this request for an exemption from the requirement of a tolerance for butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts, a conservative drinking water concentration value of 100 parts per billion (ppb) based on screening level modeling was used to assess the contribution to drinking water for the chronic dietary risk assessments for parent compound. These values were directly entered into the dietary exposure model.

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

Butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts may be used in inert ingredients in products that are registered for specific uses that may result in residential exposure, such as pesticides used in and around the home. Based on the available data for products registered for residential use, the Agency concluded that products containing inert chemicals similar to butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts (ie surfactant) usually comprise no more than 2-5% of the inert ingredient in the final product. Therefore, the Agency conducted an assessment to represent conservative residential exposure by assessing butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts in pesticide formulations (outdoor scenarios) and in disinfectant-type uses (indoor scenarios) at no more than 5% in the final formulation.

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

EPA has not found butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts to share a common mechanism of toxicity with any other substances, and butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that butanedioic acid,2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at http://www.epa.gov/pesticides/cumulative.

1. In general. Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the Food Quality Protection Act Safety Factor (FQPA SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor.

2. Prenatal and postnatal sensitivity. The toxicity database for butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts contains subchronic, combined reproduction/teratology and mutagenicity studies. There is no indication of potential neurotoxicity or immunotoxicity in the available studies. Quantitative increased fetal susceptibility was observed in the combined reproduction/teratology study in rats. Fetal toxicity (reduced pup weight) was observed at the lowest dose tested, 750 mg/kg/day. Maternal/reproduction toxicity was observed at 3,000 mg/kg/day and manifested as a reduction in the number of viable embryos, live-born per litter, fertility, viability, and lactation indices. The addition of a 10x FQPA safety factor to account for quantitative susceptibility and LOAEL to NOAEL extrapolation is not necessary because it would result in a cRfD of 0.75 mg/kg/day and the established cRfD is 0.30 mg/kg/day. The cRfD is considerably lower and will be protective of fetal susceptibility and effects observed at 750 mg/kg/day. Therefore, retention of the FQPA safety factor is unnecessary. There is low concern for reproduction toxicity since the aforementioned effects occurred above the limit dose of 1,000 mg/kg/day and a clear NOAEL of 750 mg/kg/day was established. Therefore, the established cRfD will be protective of these effects. In addition, the Agency used the most conservative (highest) exposure estimates and assumptions, including 100 PCT and tolerance-level residues for all foods, conservative estimates of drinking water exposure, and a conservative assessment of potential residential exposure for infants and children. Therefore, the FQPA SF of 10x is reduced to 1x.

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

1. Acute risk. An acute aggregate risk assessment takes into account acute exposure estimates from dietary consumption of food and drinking water. No adverse effect resulting from a single oral exposure was identified and no acute dietary endpoint was selected. Therefore, butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts is not expected to pose an acute risk.

2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts from food and water will utilize 47.9% of the cPAD for children 1-2 years old, the population group receiving the greatest exposure.

3. Short-term risk. Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level).

Butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts may be used as inert ingredients in pesticide products that could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts. Using the exposure assumptions described above, EPA has concluded that the combined short-term aggregated food, water, and residential exposures result in MOEs of 126 for both adult males and females. Adult residential exposure combines high end dermal and inhalation handler exposure from liquids/trigger sprayer/home garden use with a high end post application dermal exposure from contact with treated lawns. Also, EPA has concluded the combined short-term aggregated food, water, and residential exposures result in an aggregate MOE of 135 for children. Children's residential exposure includes total exposures associated with contact with treated lawns (dermal and hand-to-mouth exposures). As the level of concern is for MOEs that are lower than 100, these MOEs are not of concern.

4. Intermediate-term risk. Intermediate-term aggregate exposure takes into account intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level).

Butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts may be used as inert ingredients in pesticide products that could result in intermediate-term residential exposure and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with intermediate-term residential exposures to butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts. Using the exposure assumptions described above, EPA has concluded that the combined intermediate-term food, water, and residential exposures result in aggregate MOEs of 480 for adult males and females. Adult residential exposure combines liquids/trigger sprayer/home garden use with a high end post application dermal exposure from contact with treated lawns. As the level of concern is for MOEs that are lower than 100, this MOE is not of concern. EPA has concluded the combined intermediate-term aggregated food, water, and residential exposures result in an aggregate MOE of 158 for children. Children's residential exposure includes total exposures associated with contact with treated surfaces (dermal and hand-to-mouth exposures). As the level of concern is for MOEs that are lower than 100, this MOE is not of concern.

5. Aggregate cancer risk for U.S. population. Based on a DEREK structural alert analysis and the lack of mutagenicity, butanedioic acid,2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts is not expected to pose a cancer risk to humans.

6. Determination of safety. Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts residues.

An analytical method is not required for enforcement purposes since the Agency is not establishing a numerical tolerance for residues of butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts in or on any food commodities. EPA is establishing limitations on the amount of butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts that may be used in pesticide formulations applied to growing crops. These limitations will be enforced through the pesticide registration process under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), 7 U.S.C. 136 et seq. EPA will not register any pesticide formulation for use on growing crops or raw agricultural commodities after harvest for sale or distribution that exceeds 10% by weight of butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts unless additional data are submitted.

Therefore, an exemption from the requirement of a tolerance is established under 40 CFR 180. 910 for of butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts (CAS Reg. No. 815583-91-6) when used as inert ingredients (surfactant) at a maximum concentration of 10% by weight in pesticide formulations applied to growing crops or to raw agricultural commodities after harvest.

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

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

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

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

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

Therefore, 40 CFR chapter I is amended as follows:

Background

President Franklin D. Roosevelt established the Kenai National Moose Range (Moose Range) on December 16, 1941, for the purpose of “protecting the natural breeding and feeding range of the giant Kenai moose on the Kenai Peninsula, Alaska, which in this area presents a unique wildlife feature and an unusual opportunity for the study in its natural environment of the practical management of a big game species that has considerable local economic value” (Executive Order 8979; see 6 FR 6471, December 18, 1941).

Section 303(4) of the Alaska National Interest Lands Conservation Act of 1980 (ANILCA) (16 U.S.C. 3101 et seq.) substantially affected the Moose Range by modifying its boundaries and broadening its purposes from moose conservation to protection and conservation of a broad array of fish, wildlife, habitats, and other resources, and to providing educational and recreational opportunities. ANILCA also redesignated the Moose Range as the Kenai National Wildlife Refuge (NWR or Refuge) and increased the size of the Refuge to 1.92 million acres, of which approximately two-thirds were designated as Wilderness and made part of the National Wilderness Preservation System.

ANILCA sets out additional purposes for each refuge in Alaska; the purposes of Kenai NWR are set forth in section 303(4)(B) of ANILCA. The purposes identify some of the reasons why Congress established the Refuge and set the management priorities for the Refuge. The purposes are as follows:

(1) To conserve fish and wildlife populations and habitats in their natural diversity including, but not limited to, moose, bears, mountain goats, Dall sheep, wolves and other furbearers, salmonoids and other fish, waterfowl and other migratory and nonmigratory birds;

(2) To fulfill the international treaty obligations of the United States with respect to fish and wildlife and their habitats;

(3) To ensure, to the maximum extent practicable and in a manner consistent with the purposes set forth in (1), above, water quality and necessary water quantity within the Refuge;

(4) To provide, in a manner consistent with (1) and (2), above, opportunities for scientific research, interpretation, environmental education, and land management training; and

(5) To provide, in a manner compatible with these purposes, opportunities for fish and wildlife-oriented recreation.

The Wilderness Act of 1964 (16 U.S.C. 1131-1136) provides the following purposes for wilderness areas, including the Kenai wilderness area:

(1) To secure an enduring resource of wilderness;

(2) To protect and preserve the wilderness character of areas within the National Wilderness Preservation System; and

(3) To administer the areas for the use and enjoyment of the American people in a way that will leave the areas unimpaired for future use and enjoyment as wilderness.

Under our regulations implementing ANILCA in title 50 of the Code of Federal Regulations at part 36 (50 CFR part 36), all refuge lands in Alaska are open to public recreational activities as long as such activities are conducted in a manner compatible with the purposes for which the refuge was established (50 CFR 36.31). Such recreational activities include, but are not limited to, sightseeing, nature observation and photography, hunting, fishing, boating, camping, hiking, picnicking, and other related activities (50 CFR 36.31(a)).

The National Wildlife Refuge Administration Act of 1966 (16 U.S.C. 668dd-668ee), as amended by the National Wildlife Refuge System Improvement Act of 1997, defines “wildlife-dependent recreation” and “wildlife-dependent recreational use” as “hunting, fishing, wildlife observation and photography, or environmental education and interpretation” (16 U.S.C. 668ee(2)). We encourage these uses, and they receive emphasis in management of the public use on national wildlife refuges. All six of these priority uses have been determined to be compatible on the Refuge, subject to adherence to applicable State and Federal regulations.

Section 304(g) of ANILCA requires the Service to prepare refuge comprehensive conservation plans (CCPs) for all refuges in Alaska. The Service completed its first comprehensive management plan for the Kenai NWR in 1985, and a revised CCP was finalized and approved in 2010. These plans include management direction and specific actions related to administration of public uses on the Refuge. The refuge-specific public use regulations for Kenai NWR are set forth at 50 CFR 36.39(i). These regulations include provisions concerning the operation of aircraft, motorboats, off-road vehicles, and snowmobiles; hunting and trapping; camping; timber removal; personal property; use of non-motorized wheeled vehicles; canoeing; and area closures on the Refuge.

On May 21, 2015, we published a proposed rule (80 FR 29277) to amend the Refuge's public use regulations. We accepted public comments on the proposed rule for 60 days, ending July 20, 2015. We also held two public hearings on the proposed rule, one on June 17, 2015, in Soldotna, Alaska, and one on June 18, 2015, in Anchorage, Alaska.

We developed the changes to existing Refuge public use regulations included in our May 21, 2015, proposed rule to meet our legal mandates; to ensure consistency with policy, directives, and approved management plans, including implementing management direction and/or specific actions in our 2010 revised Kenai NWR CCP and 2007 Skilak Wildlife Recreation Area (WRA) final revised management plan; and to ensure public safety. The proposed changes included: (1) Amending regulations affecting use of aircraft, motorboats, motorized vehicles, and snowmobiles in order to enhance resource protection and public use opportunities; (2) codifying restrictions on hunting and trapping within the Skilak WRA recently established (in 2013) in accordance with procedures set forth at 50 CFR 36.42 (public participation and closure procedures) and implementing our 2007 Skilak WRA final revised management plan; (3) expanding a prohibition on the discharge of firearms to include areas of intensive public use along the Russian and Kenai rivers in order to enhance public safety; (4) clarifying the intent of existing regulations that require a special use permit for hunting black bears over bait by specifying that only the take of black bears is authorized under this requirement; (5) amending regulations associated with camping, use of public use cabins and public use facilities, unattended equipment, livestock (including pack animals), and public gatherings to enhance resource protection and public use opportunities; (6) establishing permanent regulations for managing wildlife attractants in the Russian River Special Management Area to reduce potential for negative human-bear interactions, thereby enhancing public safety and resource protection; (7) establishing regulations allowing for noncommercial gathering of natural resources, including collection of edible wild foods and shed antlers; and (8) codifying existing restrictions on certain uses within areas of the Refuge under conservation easements and easements made under section 17(b) of the Alaska Native Claims Settlement Act (ANCSA) (43 U.S.C. 1601 et seq.; see 43 U.S.C. 1616(b)).

We received 28 written comments on the May 21, 2015, proposed rule during the comment period, and four individuals and representatives of two organizations provided oral testimony at the public hearings. We reviewed and considered all substantive information we received during the comment period. In this final rule, we incorporate changes to the proposed rule as outlined in our responses below. As comments were often similar or covered multiple topics, we have grouped comments and responses by topic areas, which generally correspond to specific sections of the proposed Refuge public use regulations in the May 21, 2015, proposed rule.

(1) Comment: Some commenters expressed support for the changes to Refuge regulations opening additional areas of the Refuge for airplane use (Chickaloon Flats, lake in Kenai Wilderness) citing the benefits of expanded access to users; some commenters expressed opposition to these changes citing impacts to the quality of experience for users accessing wilderness areas using non-motorized means. Some commenters stated that the additional lake being opened in the Kenai Wilderness for hunters drawing Alaska Department of Fish and Game hunt permits should be open to all users. Some commenters expressed opposition to continued closures to airplane use on the Refuge under existing regulations, stating that they unnecessarily restricted access for hunters, and/or recommended that the Service expand areas of the Refuge open for aircraft use beyond that proposed to increase access opportunities. Some commenters inquired about the status of the Service's commitment to evaluate effects of the regulations that restrict airplane access to lakes otherwise open based on the presence of nesting or brood-rearing trumpeter swans. One commenter requested that a legal description be included for the expanded area open to airplane use on the Chickaloon Flats.

Our Response: The changes to the Refuge aircraft regulations in this rule implement decisions from the Refuge's 2010 CCP and the record of decision (ROD) for its accompanying environmental impact statement. Regulations governing use of aircraft on the Refuge are in place to protect refuge resources, consistent with meeting Refuge purposes including the conservation of fish and wildlife populations in their natural diversity and its Wilderness purposes.

Consistent with its commitment in the ROD, the Service will complete an analysis of trumpeter swan use of Refuge wetlands and evaluate its effect on airplane access under the regulations. Any further changes to Refuge aircraft regulations would be the subject of a future rulemaking.

We added a legal description of the expanded area open to airplane use in the Chickaloon Flats to this final rule.

(2) Comment: Some commenters expressed support for changes to Refuge regulations establishing boat and motor restrictions for sections of the Kenai River and Skilak Lake within the Refuge. Some commenters requested that the Service reconsider the proposed 10 horsepower motor restriction for boat motors in selected Refuge lakes; one commenter supported this change.

Our Response: We proposed regulations establishing boat and motor restrictions for sections of the Kenai River and Skilak Lake within the Refuge to protect refuge resources and to enhance consistency with existing State regulations for the Kenai River Special Management Area. We re-evaluated the need for a restriction in the proposed rule limiting boat motors to 10 horsepower or less in selected lakes. We will continue to rely on the existing “no wake” requirement in these lakes to minimize disturbance to wildlife and impacts to non-motorized boaters. We do not include the maximum horsepower requirement for the identified lakes in this final rule.

(3) Comment: One commenter requested that the Service consider allowing the use of off-road vehicles for ice fishing access during periods of adequate snow/ice cover. One commenter expressed support for clarifying where use of 4-wheel-drive vehicles is allowed on the Refuge. One commenter expressed opposition to the addition of jet skis and other personal watercraft to the list of prohibited watercraft; one commenter supported this change.

Our Response: Under the regulations, off-road vehicle use is prohibited on the Refuge. This prohibition is in place to prevent disturbance to wildlife and habitat degradation. The Service does not consider an exception to this prohibition for ice fishing to be warranted, as adequate motorized access, through use of highway vehicles and snowmobiles on identified lakes, is already provided for ice fishing under the regulations. The regulations prohibit operation of motorized watercraft with the exception of motorboats; specifying that jet skis and other personal watercraft are among prohibited watercraft adds clarity for the public. We did not make any changes to the rule in response to these comments.

(4) Comment: One commenter expressed support for increasing the allowable width of snowmobiles from 46 to 48 inches, and questioned why Watson Lake was not included in the list of lakes that allow use of snowmobiles for ice fishing when such use is allowed on other lakes where highway vehicles are allowed for the same purpose. A commenter requested clarification on the need for a Refuge-specific prohibition on use of snowmobiles to pursue, chase, or herd wildlife, stating that this change was redundant with existing Federal regulations. Some commenters supported the snowmobile regulations as proposed.

Our Response: Under the regulations, use of snowmobiles for ice fishing is allowed on the same lakes within the Skilak WRA that are open to highway vehicle use for ice fishing. Identifying specific lakes as open to snowmobile use for ice fishing is necessary within the Skilak WRA because this is an area of the Refuge that is otherwise closed to snowmobile use. Watson Lake lies within an area of the Refuge that is open to general snowmobile use when the Refuge has been opened to such use (based on a determination that adequate snow cover exists between the dates of December 1 and April 30), which in most years negates the need to include it in the list of lakes open to snowmobile use to provide access for ice fishing. On the rare occasions that the Refuge remains closed to snowmobiles because of inadequate snow cover but vehicular use of Watson Lake for ice fishing is possible, the Service can consider implementing a temporary opening to allow use of snowmobiles on Watson Lake for ice fishing.

In this final rule, we specify that snowmobile operation is prohibited to “herd, harass, haze, pursue, or drive wildlife” in order to clarify to the Refuge-specific regulations, which, before the effective date of this final rule (see DATES), simply prohibit “harassment of wildlife” using snowmobiles (50 CFR 36.39(i)(4)(viii)). The Service believes adding specificity and clarity to these regulations benefits the public and will lead to more effective resource protection on the Refuge, and that this change in regulatory language is warranted.

We did not make any changes to the rule in response to these comments.

(5) Comment: Some commenters stated that the Service's amendment of the Refuge public use regulations governing hunting and trapping, specifically those related to firearms discharge and hunting brown bears over bait, were not adequately vetted through a public process and were not adequately justified in the proposed rule, and therefore did not meet requirements under ANILCA for implementing Federal regulations for establishing closures and/or the requirements of the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.). Some commenters stated that the public could not meaningfully comment because of the lack of justification in the proposed rule. One commenter stated that the Service's proposed amendments to the Refuge public use regulations governing hunting and trapping are outdated and that the Service has not adequately complied with NEPA for its rulemaking by failing to analyze the direct, indirect and cumulative impacts of hunting and trapping carnivores on the Refuge.

Our Response: Federal regulations implementing ANILCA at 50 CFR 36.42(b) provide that in making a determination to close an area or restrict an activity, the Refuge Manager will be guided by several factors, including public health and safety, resource protection, and other management considerations necessary to ensure an activity or area is being managed in a manner compatible with the purposes for which the Refuge was established. As we stated in the May 21, 2015, proposed rule (80 FR 29277), we proposed changes to the Refuge public use regulations (including amending regulations specific to hunting and trapping) to ensure management of public use in a manner such that these activities remain compatible with Kenai NWR's establishment purposes and the Refuge System mission; to ensure consistency with Service policy, directives, and approved management plans; to minimize conflicts between authorized users of the Refuge; and to protect public safety.

Federal regulations at 50 CFR 36.42(e) require that permanent closures or restrictions on national wildlife refuges in Alaska shall be made only after notice and public hearings in the affected vicinity and other locations as appropriate, and after publication in the Federal Register. The Service complied with this requirement. We published our proposed rule to amend the Refuge's public use regulations, including amending Refuge regulations for hunting and trapping, in the Federal Register on May 21, 2015. We provided a 60-day public comment period, ending July 20, 2015, on the proposed rule, and we held public hearings in Soldotna (June 17, 2015) and Anchorage (June 18, 2015), Alaska, on the proposed rule.

The Service analyzed its proposed rule amending the Refuge's public use regulations, including proposed changes to hunting and trapping regulations, in accordance with the criteria of NEPA and Department of the Interior policy in part 516 of the Departmental Manual (516 DM). We determined that the rule is considered a categorical exclusion under 516 DM 8.5(C)(3), which categorically excludes the “issuance of special regulations for public use of Service-managed land, which maintain essentially the permitted level of use and do not continue a level of use that has resulted in adverse environmental impacts.” This rulemaking will result in small incremental changes in public use of the Refuge, both increasing and decreasing use, but overall will maintain permitted levels of use and will not continue a level of use that has resulted in adverse environmental impacts.

This rulemaking supports implementing the Service's management direction identified through approved Refuge management plans, including the 2010 Kenai NWR revised CCP and the 2007 Kenai NWR Skilak WRA revised final management plan. Specific to hunting and trapping on the Refuge, the Service completed compatibility determinations in 2007, for hunting, hunting of black bears using bait, and trapping concurrent with development of the Refuge's 2010 revised CCP, which was accompanied by an environmental impact statement. These activities were determined to be compatible, subject to stipulations required to ensure compatibility that includes adherence to pertinent State and Federal regulations. The Service addressed hunting and trapping in the Skilak WRA in its 2007 Skilak WRA final revised management plan and its accompanying environmental assessment.

The Service is adopting the proposed regulations, as amended in this final rule (see Table: Summary of Changes From Proposed Rule, below), for the Refuge, specific to hunting and trapping, to meet its legal mandates; to ensure consistency with policy, directives, and approved management plans; and to ensure public safety. We did not make any changes to the rule in response to these comments.

(6) Comment: Some commenters stated that the changes to Refuge regulations governing hunting and trapping in the proposed rule, specifically those related to firearms discharge along the Russian and Kenai Rivers, use of bait for hunting brown bears, and/or hunting and trapping in the Skilak WRA, are not necessary to meet the Service's legal mandates for the Refuge, are counterproductive to meeting the Refuge's original establishment purpose as the Kenai National Moose Range, conflict with provisions of the ANILCA and the National Wildlife Refuge Administration Act, are an unjustified and unnecessary preemption of State of Alaska management of wildlife, and/or are inconsistent with provisions of the 1982 Master Memorandum of Understanding (MMOU) between the Service and the Alaska Department of Fish and Game.

Our Response: The National Wildlife Refuge System Administration Act of 1966, as amended (16 U.S.C. 668dd-668ee) recognizes six wildlife-dependent recreational uses as priority public uses of the Refuge System: hunting, fishing, wildlife observation and photography, and environmental education and interpretation. These uses are legitimate and appropriate public uses where compatible with the Refuge System mission and individual refuge purposes, and are to receive enhanced consideration over other uses in planning and management. All six of the priority public uses have been determined compatible and are authorized on the Refuge.

The Service considers our regulations governing hunting and trapping on the Refuge necessary to meeting our mandates under ANILCA to conserve healthy populations of wildlife in their natural diversity on the Refuge, to meet its Wilderness purposes, and to meet its purpose for providing compatible wildlife-oriented recreational opportunities, which include both consumptive and non-consumptive activities.

By law (National Wildlife Refuge System Administration Act of 1966, as amended; Alaska National Interest Lands Conservation Act of 1980), regulations (43 CFR part 24), and policy (the Service Manual at 605 FW 1 and 605 FW 2), the Service must, to the extent practicable, ensure that refuge regulations permitting hunting and fishing are consistent with State laws, regulations, and management plans. In recognition of the above, non-conflicting State general hunting and trapping regulations are usually adopted on refuges. Hunting and trapping, however, remain subject to legal mandates, regulations, and management policies pertinent to the administration and management of refuges.

Under the 1982 MMOU between the Service and the Alaska Department of Fish and Game, it is recognized that taking of fish and wildlife by hunting, trapping, or fishing on Service lands in Alaska is authorized under applicable State and Federal law unless State regulations are found to be incompatible with documented refuge goals, objectives, or management plans. The MMOU commits the Service to utilize the State's regulatory process to the maximum extent allowed by Federal law in developing new or modifying existing Federal regulations or proposing changes in existing State regulations governing or affecting the taking of fish and wildlife on Service lands in Alaska. The MMOU also recognizes that the Service's responsibility for regulating human use on the Refuge.

The Service coordinated with the Alaska Department of Fish and Game in development of the Refuge's 2010 CCP and 2007 Skilak WRA final revised management plan, and during the development of the proposed and this final rule. The Service continues to actively participate in the State's regulatory process with the Alaska Board of Game on issues related to hunting and trapping on the Refuge, including recent coordination on hunting brown bears over bait and hunting in the Skilak WRA, both of which are subjects of this rulemaking. The Service remains committed to working with the State of Alaska and using State regulatory processes, consistent with the MMOU. We did not make any changes to the rule in response to these comments.

(7) Comment: Some commenters expressed opposition to the proposed firearms discharge restriction within 1/4 mile of the shorelines of the Kenai River and Russian River within the Refuge, citing one or more of the following:

• Discharge of firearms does not create public safety issues because very little hunting occurs in the area or because public use levels for fishing drastically fall as freeze-up approaches in late September; and

• There is no biological basis for, or data or scientific need justifying, the closure. Some commenters expressed support for the Service's proposed firearms discharge prohibition along the Kenai and Russian rivers, citing its benefits to protection of public safety.

Our Response: Federal regulations at 50 CFR 36.42(b) provide that in making a determination to close an area or restrict an activity, the Refuge Manager shall be guided by several factors, including public health and safety. Specifically to address public safety issues, the regulations currently prohibit firearms discharge on the Refuge as follows: Firearms may not be discharged within 1/4 mile of designated public campgrounds, trailheads, waysides, buildings or the Sterling Highway from the east Refuge boundary to east junction of the Skilak Loop Road (50 CFR 36.39(i)(5)(i)).

As stated in the May 21, 2015, proposed rule, we proposed the firearms discharge prohibition on lands within 1/4 mile of the Kenai River shoreline upstream and downstream of Skilak Lake and the Russian River shoreline from its confluence with the Kenai River upstream to the Russian River Falls, with exceptions for the use of shotguns for waterfowl and small game hunting and firearms used while lawfully trapping, specifically to enhance public safety along these intensively used river corridors.

Field observations by Refuge staff and interactions with users and permitted fishing guides and outfitters have documented steadily increasing levels of public use, primarily for fishing but also for river floating (Kenai River only), and associated activities such as hiking and wildlife viewing, on and along the upper Kenai and Russian rivers within the Refuge, and that the timing of relatively heavy use for these activities now includes fall and spring months during ice-free periods. Highest periods of use in fall and spring for fishing occur from September through mid-October and late March through April, respectively. River floating on the upper Kenai River begins in May and extends through October, with highest use levels occurring from June through September. Similarly, high levels of public use occur in the middle Kenai River below Skilak Lake within the Refuge during fall and spring, primarily for fishing. Much of the increased use of both the Kenai and Russian rivers during fall and spring months can be attributed to the increasing popularity of their rainbow trout fisheries.

Publicly available study reports corroborate these observations. For example, a recent recreation study of the Kenai River completed in 2010, by Drs. Douglas Whittaker and Bo Shelby for the Alaska Department of Natural Resources, Division of State Parks and Recreation (Kenai River Recreation Study, Major Findings and Implications, 2010), reported that perceived crowding on the Upper Kenai River (between Sportsman's Landing and Jim's Landing) in September (when the primary fish targeted are rainbow trout, Dolly Varden, and silver salmon) is as high as for some salmon fisheries occurring during the summer months.

Recent takes of brown bears along the Russian and Kenai rivers during the falls of 2013 and 2014 posed threats to public safety, as bears were shot in close proximity to other users fishing from shore, wading, or boating, and firearms and ammunition with substantial lethal distances were used in areas where sight distances are extremely limited due to vegetation and river meanders. These takes occurred on, along, or immediately adjacent to river shorelines and within the 1/4-mile buffer distance established by this rule. In addition, discharge of firearms to “warn” or deter bears presents a growing threat to public safety along the Russian and Kenai rivers.

Recently enacted changes to State hunting regulations for brown bears on the Kenai Peninsula have increased the potential for firearms discharge to result in threats to public safety in these areas. Current brown bear hunting season dates of September 1 to May 31 substantially overlap with periods of high public use along the Russian and Kenai rivers during fall and spring (in the 7 years prior to 2008, brown bear hunting season dates were October 15 to October 30).

The Service considers adoption of this rule necessary to reduce threats to public safety posed by discharge of firearms along the Russian and Kenai rivers during periods of high visitation for activities including fishing, river floating, hiking, and wildlife observation. We did not make any changes to the rule in response to these comments.

(8) Comment: Some commenters stated that the closure affects the taking of wildlife on Service lands, and consistent with the MMOU between the Service and the Alaska Department of Fish and Game, should be first submitted by the Service to the Alaska Board of Game under the State regulatory process for consideration. Some commenters stated that the area affected by the proposed firearms discharge prohibition is a traditional moose and bear hunting area and the rule will negatively impact these users.

Our Response: The Service proposed the amendments to the regulations to enhance public safety along the Kenai and Russian rivers during periods of intensive public use. The rule is not intended to affect taking of wildlife on the Refuge, and will have negligible impacts on hunting opportunity and harvest levels for the reasons noted below.

This rule allows for continued use of shotguns for waterfowl and small game hunting, and use of firearms while lawfully trapping, along the Kenai and Russian rivers. Waterfowl hunting along the Kenai River currently accounts for the vast majority of hunting activity in the affected area, as it has historically. This rule will have negligible impacts on overall hunting opportunity and harvest levels of black bears, brown bears, and moose on the Refuge, as most hunting activity for these species occurs outside of these river corridors. This rule expands the restriction on discharge of firearms on the Refuge by just under 4,000 acres, or approximately 0.2 per cent of lands in the Refuge currently open to hunting of moose, black bear, and brown bear (totaling over 1.9 million acres). In addition, reasonable opportunities to hunt these species with firearms in the vicinity of the Russian and Kenai rivers for those wishing to do so will continue to be available outside of the 1/4-mile river corridors established by this rule.

The MMOU recognizes that the Service has responsibility for regulating human use on refuges in Alaska. Protection of public safety is a critically important responsibility of the Service in managing public use on refuge lands, and the Service deems this rule necessary to enhance public safety on and along these intensively used rivers. The Service remains committed to the terms of the MMOU and will continue to coordinate with the Alaska Board of Game and Alaska Department of Fish and Game on proposals whose intent is to affect the take of fish and wildlife on Service lands. We did not make any changes to the rule in response to these comments.

(9) Comment: Some commenters stated that the Service proposed firearms discharge prohibition is not consistent, or does not enhance consistency, with State regulations on firearms discharge with the Kenai River Special Management Area (KRSMA) because it extends beyond KRSMA boundaries, is not date specific, and/or because the State's KRSMA regulations are contingent on the location of developed facilities or dwellings and do not apply to the entire length of the Kenai and Russian rivers. Some commenters requested that the Service consider less restrictive regulations for the discharge of firearms around buildings such as public use cabins in remote areas that are only accessible via boat, snowmobile, or float plane because firearm discharge closer to the cabin does not pose a safety concern.

Our Response: While applying to lands and waters within the Refuge and outside of the KRSMA, this rule (including the clarification that the prohibition around buildings includes Refuge public use cabins) is consistent with, and complements, State firearms regulations for the KRSMA. State regulations (11 Alaska Administrative Code (AAC) 20.850) allow the use and discharge of a weapon for the purpose of lawful hunting or trapping in the KRSMA only on Skilak Lake and Kenai Lake, except that shotguns may be discharged below Skilak Lake for purpose of lawful hunting or trapping, from September 1 to April 30 annually. In addition, the discharge of any firearm within the KRSMA is prohibited within 1/2 mile of a developed facility or dwelling, except that discharge of a shotgun using steel shot no larger than size T is allowed at a distance of no less than 1/4 mile from a developed facility or dwelling.

Consistent with State regulations, the Service's proposed firearms discharge prohibition along the Kenai and Russian rivers does not apply to firearms discharge on or along Skilak Lake. With very few, if any, exceptions, shotguns are used within the KRSMA to hunt waterfowl. Similarly, our regulations allow the use of shotguns for waterfowl hunting (and small game hunting), and allow use of any firearm while lawfully trapping, within the area of the Refuge to which the regulations apply. Allowances for these activities under our proposed rule, and in this final rule, span the season dates (September 1 to April 30) specified in the State regulations, negating a need to specify season dates.

The Service's firearms discharge prohibition along the Russian River is also consistent with and complements U.S. Forest Service regulations restricting use of weapons in the vicinity of recreational facilities, and which apply to an adjoining area of similar size, in the Chugach National Forest from the Russian River's confluence with the Kenai River upstream to the Russian River Falls (36 CFR 261.10(d)). In 2015, the U.S. Forest Service expanded the weapons discharge prohibition in this area to address public safety concerns associated with use of weapons for bear hunting along the Russian River during periods of high public use (36 CFR 261.53(e)).

The prohibition on discharge of firearms within 1/4 mile of buildings in the current regulations (50 CFR 36.39(i)(5)(i)) is meant to ensure public safety around buildings used by the public or administratively by Service personnel, and is unrelated to the building's location or the means of transportation used by the public to travel to the building.

Similar to the basis for the Service's regulations, enhancing public safety was the basis for promulgation of State and Federal regulations restricting use of weapons on and/or along the Kenai and Russian rivers adjacent to the Refuge. We did not make any changes to the rule in response to these comments.

(10) Comment: Some commenters stated that the Service's proposed rule is contradictory or does not adequately explain why discharging firearms for waterfowl and small game hunting or use of archery equipment does not pose a safety hazard when the use of firearms to take big game does, and that by omission, it appears the Service may be using public safety as justification to preclude a particular form of hunting.

Our Response: While restricting the use of firearms, this rule allows for continued use of shotguns for waterfowl and small game hunting and use of firearms to dispatch animals while lawfully trapping. Waterfowl hunting is currently and has historically been the primary hunting activity conducted in the affected area, and it occurs primarily along the Kenai River below Skilak Lake. The use of shotguns in the areas traditionally used for waterfowl (and small game hunting) along the Kenai River poses minimal public safety concerns because of the locations and manner in which these activities are conducted and due to the more limited travel distances of shotgun ammunition used for waterfowl and small game hunting. Trapping seasons do not overlap with periods of high visitation, as the river corridors receive substantially less public use during winter. The Service therefore does not consider prohibitions on firearms discharge for these activities to be warranted. The Service also believes that use of archery equipment poses negligible risks to public safety in the affected area. We did not make any changes to the rule in response to these comments.

(11) Comment: Some commenters expressed concern that the firearms discharge prohibition along the Kenai and Russian rivers would preclude use of firearms for personal protection, and suggested modification to allow for such use.

Our Response: Neither the Service's current regulations nor this rule prohibiting firearms discharge in certain areas of the Refuge preclude the possession and/or use of firearms to take game in defense of life and property as defined under State law (5 AAC 92.410). We have amended this final rule to specifically state that the firearms discharge prohibition does not preclude the use of firearms to take game in defense of life and property as defined under State law.

(12) Comment: Some commenters stated that the Service has not provided adequate information or justification nor completed required administrative processes necessary to preempt a recently adopted State regulation that allows for take of brown bears at black bear bait stations; the Service also has not explained adequately how it used the State's regulatory process in a manner consistent with the Master Memorandum of Understanding between the Service and the Alaska Department of Fish and Game. A commenter noted this prohibition in the proposed rule is an unnecessary replication of an existing Refuge special use permit stipulation.

Our Response: Federal regulations at 50 CFR 36.42(b) provide that in making a determination to close an area or restrict an activity, the Refuge Manager shall be guided by several factors, including public health and safety, resource protection, and other management considerations necessary to ensure an activity or area is being managed in a manner compatible with the purposes for which the Refuge was established.

As stated in the May 21, 2015, proposed rule (80 FR 29277), current Refuge regulations (50 CFR 36.39(i)(5)(ii)) specify that hunting black bears over bait on the Refuge requires a special use permit (FWS Form 3-1383-G). This requirement was promulgated in the 1980s (51 FR 32297) in recognition of issues associated with use of bait for hunting black bears on the Refuge, and the need to further regulate this method of take to ensure compatibility of this activity. The intent of this requirement has always been, and continues to be, to authorize the use of bait for the take of black bears only. This restriction is explicitly stated in the terms and conditions of the current Refuge special use permit issued for black bear baiting: “Hunting over bait is prohibited on the Kenai National Wildlife Refuge, with the exception of hunting black bears as authorized under the terms and conditions of this Special Use Permit.”

The Service considers the clarification concerning hunting over bait that we are making in this final rule at 50 CFR 36.39(i)(5)(ii) necessary to meeting our mandates under ANILCA to conserve healthy populations of wildlife in their natural diversity on the Refuge, to meet the Refuge's Wilderness purposes, and to meet the Refuge's purpose for providing compatible wildlife-oriented recreational opportunities (both consumptive and non-consumptive). Specific to use of bait to take brown bears, the Service considers allowance of this method to be inconsistent with these mandates due to its potential to result in overharvest of this species, with accompanying population-level impacts, due to its high degree of effectiveness as a harvest method and the species' low reproductive potential. The Service also believes that baiting of brown bears has potential to modify bear behavior and increase human-bear conflicts, and that allowance of this method to take brown bears on the Refuge would result in increased baiting activity and pose an increased risk to public safety. These issues are further discussed in our response to Comment (13), below.

In 2013, the Service formally communicated its regulatory requirement limiting hunting over bait to the take of black bears, and our intent to maintain this requirement, to the State of Alaska in advance of the Alaska Board of Game's adoption of a State regulation that allows take of brown bears at black bear bait stations on the Kenai Peninsula. In addition, the Service requested that Refuge lands be excluded should this State regulation be adopted.

Codifying the Service's special use permit stipulation that prohibits hunting over bait with one exception for hunting of black bears provides additional notice to the public of this restriction, clarifies our longstanding intent to authorize only the take of black bears at permitted bait stations on the Refuge, and is consistent with meeting Refuge purposes under ANILCA. The Service deems this additional notice and clarification necessary in light of the Alaska Board of Game's 2013 adoption of a regulation allowing the take of brown bears at registered black bear baiting stations on the Kenai Peninsula. We did not make any changes to the rule in response to these comments.

(13) Comment: Some commenters expressed opposition to prohibiting harvest of brown bears over bait, stating that it is not biologically justified because the Refuge brown bear population is higher than the Service believes it is, that baiting allows for selective harvest of bears, and that studies have shown that baiting does not result in food-conditioning of bears. Some commenters stated that baiting for bears (brown and black) can be conducted under recognized principles of sustained yield management; that adequate protections exist under State management, including reporting requirements and limiting harvest of female bears, to minimize the potential for overharvest; and that the sex composition of the recent brown bear harvest at bait stations on the Kenai Peninsula, which was predominantly male bears, further supported that hunting brown bears over bait was consistent with sustained yield management.

Our Response: Allowance of take of brown bears at black bear baiting stations was one of several changes that substantially liberalized State regulations for sport hunting of brown bears on the Kenai Peninsula beginning in 2012. Harvest levels, and overall human-caused mortalities, of brown bears increased substantially following the changes in State hunting regulations enacted in 2012 and 2013, with resulting impacts on the Kenai Peninsula's brown bear population. On average, 21 brown bear human-caused mortalities (hunting and nonhunting) occurred annually on the Kenai Peninsula from 1995 through 2011. From 2012 to 2014, the annual average nearly tripled to 61 bears. Human-caused mortalities during this period totaled 184 brown bears, 148 of which were taken by hunters. Human-caused mortalities in 2013 (71) and 2014 (69) were over 6 times the 50-year annual average of 11 brown bears killed from 1961 through 2011.

The Kenai brown bear population was estimated in 2010 through a joint field study conducted by the Refuge and U.S. Forest Service. This DNA-based mark-recapture study generated a Kenai Peninsula-wide brown bear population estimate of 582 bears (95 percent lognormal confidence interval of 479 to 719 bears). This study and its results were peer-reviewed and recently published in the Journal of Wildlife Management (Morton et al. 2016). The Service considers this to be the best available scientific estimate of this population.

Population modeling by the Service (using the model Vortex 9.9) suggested that known human-caused mortality of Kenai Peninsula brown bears from 2012 to 2014, following changes in State brown bear hunting regulations, reversed the previous increasing trajectory of the brown bear population and resulted in a decline of approximately 18 percent (a modeled decline from the 2010 population estimate of 582 bears to 478 bears).

In 1998, due to concerns about population status, habitat loss and increasing levels of human-caused mortality, the Alaska Department of Fish and Game classified the Kenai brown bear population as a “population of special concern.” Using the 2010 population estimate and brown bear demographic data obtained from ongoing telemetry studies, modeling (Vortex 9.9) also suggested that similar levels of human-caused mortality of brown bears documented from 2012-2014 (primarily resulting from sport hunting) would continue to reduce the brown bear population to levels similar to those which in the recent past posed conservation concerns. The Service deemed this rapid reduction of the Kenai Peninsula brown bear population, along with the potential for continued decline, to be inconsistent with meeting its legal mandates to conserve healthy wildlife populations (including brown bears) in their natural diversity on the Refuge, to provide for wildlife-oriented recreational opportunities that include both consumptive and non-consumptive activities, and to meet the Refuge's Wilderness purposes; therefore, the Service implemented closures to brown bear sport hunting on the Refuge in 2013 and 2014. Additional information regarding the Service's recent management of sport hunting of brown bears on the Refuge, which also provides greater detail on Kenai brown bear management history, population status and dynamics, and modeling results, is available as part of the rulemaking administrative record, available at Kenai National Wildlife Refuge.

Annual harvests of brown bears in 2013 and 2014 in Game Management Unit (GMU) 7 on the Kenai Peninsula demonstrate the increased effectiveness of hunting this species over bait. According to Alaska Department of Fish and Game harvest statistics, the 2013 harvest of brown bears in GMU 7 prior to baiting being legalized was 12 bears during a 198-day season. In 2014, harvest during a 189-day season was 38 brown bears, of which 28 (77 percent) were harvested over bait. Since becoming legal for the first time in spring 2014, harvest of brown bears at bait stations has accounted for the majority of brown bear harvest on the Kenai Peninsula. In 2014, 62 percent (40 of 65) of bears harvested were taken over bait. As of January 2016, preliminary 2015 harvest statistics available from the Alaska Department of Fish and Game indicate that 89 percent (16 of 18) of bears taken in spring and 59 percent (16 of 27) of bears legally taken by sport hunters overall have been harvested over bait.

Adherence to harvest caps for adult female bears and overall human-caused mortality can help ensure sustainability of harvests. However, based on our modeling (using Vortex 9.9), human-caused mortality of brown bears at current harvest caps (maximums of 12 adult female bears and 60 bears overall), provided in formal direction to the Alaska Department of Fish and Game by the Alaska Board of Game in 2015, would result in a continued reduction of the Kenai brown bear population. Based on best available scientific information and population modeling using the Vortex 9.9 model, the Service believes that allowance of take of brown bears over bait on the Refuge would increase human-caused mortality of Kenai brown bears to levels which would continue to reduce the population, with potential to result in conservation concerns for this population. We also note that the sex and age composition of the brown bears harvested over bait on the Kenai Peninsula in 2014 and 2015 represents a small and short term sample, and may not be representative of harvest composition over a longer period of time.

The Service believes that a cautious approach to management of Kenai Peninsula brown bears is scientifically warranted due to several factors. The Service must consider these factors in ensuring that hunting is administered on the Refuge in a manner that ensures that the Service's legal mandates are met, and they underlie our decision to maintain existing regulations that restrict harvest over bait to take of black bears only. Black bears occur in much higher densities than brown bears on the Kenai Peninsula, have higher reproductive potential than brown bears, and as such can support higher harvest levels and are less susceptible to overharvest. Conversely, brown bears have one of the lowest reproductive potentials of any North American mammal, and at current densities, the Kenai brown bear population remains a relatively small population (Morton et al. 2016) that is highly sensitive to adult female and overall human-caused mortality levels. Genetics studies have determined that Kenai brown bears comprise an insular population (reported in the Canadian Journal of Zoology in 2008 by Jackson et al.), which means that immigration from mainland Alaska will not assist in sustaining the population, and that Kenai brown bears have very low haplotypic genetic diversity (Jackson et al. 2008), which has unknown but potentially important conservation implications. The Kenai brown bear population will continue to be strongly influenced by habitat loss and fragmentation and multiple potential sources of human-caused mortality as the human population continues to grow on the Kenai Peninsula and recreational use of public lands increases. Finally, timely and accurate monitoring of the status of the Kenai Peninsula brown bear population is extremely difficult at best, costs associated with monitoring are high, and funding for monitoring is usually limited and never guaranteed. This is important given that the increased effectiveness of harvesting brown bears over bait would likely mask the effects of reduced bear densities on harvest success, thereby increasing potential for overharvest in the absence of adequately rigorous population monitoring.

Maintaining our existing limits on hunting over bait is also intended to minimize the potential for public safety issues associated with conditioning brown bears to human foods commonly used at bait stations. While baiting for black bears is currently allowed on the Refuge and has potential to create food-conditioned bears, we would expect increased baiting activity and increased potential for human-bear conflicts if take of brown bears over bait were allowed. The number of permitted black bear baiting stations on the Kenai Peninsula increased from roughly 300 in years prior to, to just over 400 bait stations each year following (2014 and 2015), adoption of State regulations allowing harvest of brown bears over bait. It is well documented that food-conditioning of bears results in increased potential for negative human-bear encounters and increased risk to public safety (as reported by Herrero in 1985 in the book Bear attacks: their causes and avoidance, and by Herrero and Fleck in 1990 in Bears: Their Biology and Management, Volume 8, A Selection of Papers from the Eighth International Conference on Bear Research and Management). There is also an increased likelihood that food-conditioned bears would be killed by agency personnel or in defense of life or property. Consistent with Service policy on managing recreational uses in a manner that helps ensure public safety, the Service actively promotes food storage and other practices aimed specifically at reducing the potential for human-bear conflicts.

We did not make any changes to the rule in response to these comments.

(14) Comment: Some commenters expressed support for prohibiting take of brown bears at bait stations, citing one or more of the following:

• Legalization of this practice by the State in support of predator control is not appropriate on refuges;

• The practice is unethical and conflicts with principles of “fair chase” hunting; and

• The practice poses a threat to public safety.

Most of these commenters also noted that the Service should also prohibit baiting of black bears on the Refuge for the same reasons.

Our Response: Codifying this prohibition as part of the Refuge's public use regulations provides additional notice to and clarification for the public of the Service's longstanding intent to authorize only the take of black bears at permitted bait stations on the Refuge. The Service last evaluated black bear baiting through a 2007 compatibility determination, and found the activity to be compatible. We did not make any changes to the rule in response to these comments.

(15) Comment: Some commenters expressed opposition to the Service's proposed hunting and trapping regulations for the Skilak WRA, citing one or more of the following:

• State-managed hunting and trapping in the Skilak WRA is compatible with Service public use objectives to provide opportunities for wildlife viewing in the area;

• The Service has not provided biological data demonstrating the need for the closures to meet these objectives;

• The closures are inconsistent with ANILCA and/or Service policy governing management of wildlife-dependent recreational uses because they inappropriately favor one compatible use (wildlife viewing) over another (hunting);

• The closures set a precedent that the Refuge would be the only National Wildlife Refuge in Alaska that has an area set aside for one user group;

• The closures violate ANILCA by creating a conservation area within an existing conservation unit;

• Limitations on wildlife viewing in the Skilak WRA were more dependent upon terrain, weather, season, time of day, and other factors than sustainable harvests of wildlife; and

• Hunting of predators is needed to balance wildlife populations, prevent the area's moose population from being overrun, and provide visitors with opportunities to enjoy a wider variety of wildlife.

Some commenters expressed support for the Service's proposed hunting and trapping regulations for the Skilak WRA, citing one or more of the following:

• Managed as it currently is, the Skilak WRA is an extremely valuable public asset;

• The Skilak WRA is an outstanding opportunity for the Refuge to fulfill its wildlife viewing, photography, and environmental education and interpretation mandates on the Refuge, but only if harvest is restricted. Additional hunting in the Skilak WRA would degrade, undermine, and conflict with public opportunities for other recreation and education that have been provided for 30 years; and

• The proposed regulations are necessary to meet goals and objectives of approved refuge management plans and legal mandates to maintain healthy populations of wildlife on refuges.

Our Response: The Skilak WRA is a 44,000-acre area of the Refuge that has, since 1985, been managed with a primary emphasis on providing the public enhanced opportunities for wildlife viewing, and environmental education and interpretation. The Service has worked extensively with the Alaska Department of Fish and Game and the Alaska Board of Game over the years in planning and implementing management direction, including management of hunting and trapping, in the Skilak WRA.

In 1985, the Service released a record of decision for the Refuge's first comprehensive management plan. A directive of this plan was the establishment of a special area, the “Skilak Loop Special Management Area,” that would be managed to increase opportunities for wildlife viewing, and environmental education and interpretation. In December 1986, the Service, working closely with the Alaska Department of Fish and Game, identified specific goals for providing wildlife viewing and interpretation opportunities, and hunting and trapping opportunities were restricted so that wildlife would become more abundant, less wary, and more easily observed. Regulatory proposals that prohibited trapping, allowed taking small game by archery only, and provided a moose hunt by special permit were developed and approved by the Alaska Board of Game in 1987. Hunting of all other species was prohibited. These State of Alaska regulations remained in effect until 2013, with modifications to allow for a youth-only firearm small game hunt in a portion of the area in 2007, and for the use of falconry to take small game in 2012.

In 2005, the Alaska Board of Game adopted a proposal to allow firearms hunting of small game and fur animals (as practical matter in the area, fur animals would include lynx, coyote, beaver, red fox and squirrel), but subsequently put that State regulation on hold pending the Service's development of an updated management plan for the area. The Service initiated a public planning process with a series of public workshops in November 2005, and evaluated management alternatives through an environmental assessment, which was made available for public review and comment in November 2006.

The Service released a finding of no significant impact, and the Kenai NWR Skilak WRA revised final management plan was released in June 2007. This plan reaffirmed the overall management direction for the Skilak WRA as a special area to be managed primarily for enhanced opportunities for wildlife viewing and environmental education and interpretation, while allowing other non-conflicting wildlife-dependent recreational activities. The plan maintained longstanding restrictions on hunting (including hunting of fur animals) and a trapping closure, with the exception of adding a “youth-only” small game firearms hunt in the western portion of the area. In 2007, the Alaska Board of Game adopted State regulations maintaining the closures and restrictions, and opening the “youth-only” small game firearm hunt.

Consistent with its 2007 Skilak WRA final revised management plan, the Service enacted a permanent closure restricting hunting and closing trapping in the Skilak WRA in November 2013 (see 78 FR 66061, November 4, 2013), which mimicked State of Alaska hunting and trapping regulations for the area in effect prior to 2013. The Service implemented this current closure in response to action taken by the Alaska Board of Game in March 2013, which opened the Skilak WRA to taking of lynx, coyote, and wolf within the area under State hunting regulations. Under this new State regulation, which became effective July 1, 2013, taking of these species is allowed during open hunting seasons from November 10 to March 31. In advance of this action, the Service requested that the Alaska Board of Game not adopt the proposal establishing these regulations because it would be inconsistent with Refuge management objectives for the area, and advised that doing so would require the Service to maintain restrictions on the hunting of these species under its own authorities.

A primary basis for the Service's decision to issue this permanent closure was first recognized in the original 1986 management goals and specific management objectives for furbearers, which led to the closure of hunting and trapping of these species in the Skilak WRA. Furbearers such as wolves, coyote, and lynx occur in relatively low densities, and are not as easily observed as more abundant and/or less wary wildlife species. Annual removal of individual wolves, coyote, or lynx from the Skilak WRA, and/or a change in their behavior, due to hunting (or trapping) would reduce opportunities for the public to view or photograph or otherwise experience these species. While we concur that factors such as terrain, vegetation, and time of day affect wildlife viewing, visitors to the Skilak WRA experience and learn about these species in a variety of ways, such as observing tracks, hearing vocalizations, or observing other signs of the species. Similarly, Refuge environmental education and interpretation programs that benefit from enhanced opportunities provided in the area to view or otherwise experience these species would be negatively impacted. Even in the absence of area-specific scientific studies and data, it is a reasonable conclusion that annual harvest would maintain reduced densities, and/or affect behavior, of these species in the Skilak WRA and degrade opportunities for wildlife observation, photography, and environmental education and interpretation, given the area's small size, its accessibility by road, proximity to population centers, and likely hunting (or trapping) pressure.

Minimizing conflicts between non-consumptive and consumptive users of the Skilak WRA and ensuring public safety also continue to be important considerations for how hunting and trapping is managed in the area. While highest levels of public use in the Skilak WRA occur in the summer months, observations by Refuge staff and records of use of Refuge public use cabins indicate that fall and winter recreational use of the area for many activities, including hiking, general nature observation and photography, night sky observation, cross country skiing, and winter camping, is substantial and increasing. Given this increased public use during winter, the Service believes that allowing hunting (or trapping) of wolves, coyotes, and lynx during winter months in the Skilak WRA would increase the potential for conflicts between users and safety issues.

Providing environmental education and interpretation for the public, and for “wildlife-oriented” recreational uses, which includes non-consumptive activities such as wildlife viewing as well as hunting and fishing, are legally mandated Refuge purposes under ANILCA. These two purposes are in fact unique purposes to this Refuge among all refuges in Alaska. Meeting Refuge public use objectives in the Skilak WRA is consistent with and directly supports meeting these Refuge purposes. Regulating non-conflicting hunting activities and the use of firearms in the Skilak WRA in a manner that supports meeting all Refuge purposes, minimizes conflicts among user groups, and enhances public safety is necessary to ensure the compatibility of hunting as an authorized use on the Kenai NWR.

Management that provides for emphasis on non-consumptive uses in the Skilak WRA, while allowing for non-conflicting hunting activities and enhancing public safety, is also consistent with Service policy at 605 FW 1 for managing wildlife-dependent recreational uses on National Wildlife Refuges. Hunting and trapping of lynx, coyote, and wolves under State of Alaska regulations remains authorized on over 97 percent of the Refuge (over 1.9 million acres).

The final rule codifies the Service's November 2013 permanent hunting restrictions and trapping closure, established in accordance with 50 CFR 36.42, in the Skilak WRA (78 FR 66061, November 4, 2013). This rule supports implementation of the Service's 2007 final revised management plan for the Skilak WRA, which reaffirmed management objectives for the area established under the Refuge's 1985 Comprehensive Management Plan. We did not make any changes to the rule in response to these comments.

(16) Comment: Some commenters stated that the Service's hunting and trapping closures would not improve wildlife viewing opportunities in the Skilak WRA because the Service has failed to fully implement its facilities and habitat plans for the area, or that additional infrastructure would benefit wildlife viewing opportunities.

Our Response: To further development of wildlife viewing, and environmental education and interpretation opportunities, in 1988, the Service prepared a step-down plan for public use facility management and development, and renamed the area the Skilak WRA. Over $5 million in improvements to existing, and development of new, visitor facilities occurred in ensuing years as funding permitted, and included new and improved roads, scenic turn-outs, campgrounds, hiking trails, interpretive panels and information kiosks, viewing platforms, and boat launches. While not all planned developments have been completed, the Refuge currently maintains 8 facility access roads, 8 public campgrounds, 3 public use cabins, 10 hiking trails (totaling just over 20 miles), 3 scenic overlooks, 11 boat launches, 12 informational kiosks and numerous interpretive panels, and 13 developed parking areas within the Skilak WRA in support of meeting its public use management objectives for the area. The Service has also implemented small-scale habitat management projects within the Skilak WRA. The Service will continue to develop recreational infrastructure and habitat projects in the area, consistent with approved management plans, as allowed by available funding and staffing. We did not make any changes to the rule in response to these comments.

(17) Comment: A commenter requested that dates of a fishing closure for an area 100 feet upstream and downstream of the Russian River Ferry dock on the south shore of the Kenai River be changed from June 1 to August 15 to June 11 to August 20 to provide consistency with State sport fishing regulations. One commenter opposed the closure stating it was unnecessary.

Our Response: In this final rule, we eliminate those fishing closure dates and specify that the closure is in effect during hours of operation of the Russian River Ferry. Ferry operations open concurrent with the opening day of recreational fishing for salmon and resident fish species in the area in June, and operations typically continue through Labor Day. We believe this change simplifies the rule while continuing to meet the intent of the existing regulations to enhance public safety in the vicinity of the Ferry dock and landing area.

(18) Comment: Several commenters expressed opposition to the Service's proposal to prohibit dispersed camping in an area within 100 yards of the banks of the Kenai River along two sections of the River within the Refuge (upper Kenai River and Middle Kenai River), citing loss of traditional camping opportunity, impacts to visitor safety and increased risks to personal property, and expansion of habitat impacts from new trail and campsite development and use; some commenters supported this prohibition, citing the benefits of riverbank habitat protection. Some commenters stated the need for this prohibition was not adequately justified. Some commenters noted that while the prohibition was addressed for the upper Kenai River in the Refuge 2010 CCP, a similar prohibition for the Middle Kenai River had not been previously considered by the Service through a public process and additional evaluation, and public input was needed.

Our Response: The prohibition on dispersed camping within 100 yards of the banks of the upper Kenai River in this rule implements decisions from the Refuge's 2010 CCP and the record of decision for its accompanying environmental impact statement. River bank closures along the Kenai River are commonly used by resource agencies to protect sensitive riparian vegetation, which is subject to trampling, resulting in degradation of salmon rearing habitat. In the May 21, 2015, proposed rule, the Service proposed to implement this decision with a modification to allow for some dispersed camping along the upper Kenai River at designated sites. We chose this approach to enhance natural resource protection by reducing camping impacts along the upper Kenai River while allowing for some historical along-river camping use to continue. We have completed an evaluation of existing camping sites along the upper Kenai River and have identified 10 sites that will be designated for dispersed camping. These sites are identified on a map available on http://www.regulations.gov under Docket No. FWS-R7-NWRS-2014-0003 as a supporting document for this rulemaking. This map will also be available to the public electronically on the Refuge Web site (http://www.fws.gov/refuge/kenai/) and at the Refuge Headquarters.

The May 21, 2015, proposed rule included the same camping restrictions for the Middle Kenai River within the Refuge. We have decided not to address dispersed camping along the Middle Kenai River within the Refuge in this rulemaking. The Service will continue coordination with the State on management issues affecting the Middle Kenai River, and will monitor and evaluate camping along the upper Kenai River and use the results of monitoring to inform a future public planning process. This final rule reflects this decision.

(19) Comment: A commenter stated that the proposed restriction on group size to 15 people in the Swanson River and Swan Lake Canoe routes was a substantive change to current management and is not adequately justified in the proposed rule. Some commenters stated that the rule should be modified to reflect that larger group sizes may be permitted at the discretion of the Refuge Manager, consistent with a decision in the 2010 Refuge CCP.

Our Response: Group size in the Swanson River and Swan Lakes Canoe Routes is limited to 15 people under current Refuge regulations (see 50 CFR 36.39(i)(7)(vii)). In this final rule, we amend the regulations to state that larger group sizes may be allowed at the discretion of the Refuge Manager through issuance of a special use permit.

(20) Comment: A commenter requested that the Service consider allowing use of bicycles and wheeled game carts on Refuge trails open to horses or snowmobiles; another commenter stated that industrial roads should be opened to bicycle use. A commenter was opposed to the allowance of wheeled game carts on industrial roads.

Our Response: Use of non-motorized wheeled vehicles, which includes bicycles, are allowed only on roads open to public vehicular access under current Refuge regulations (see 50 CFR 36.39(i)(7)(v)). Use of bicycles on industrial roads within the Refuge is prohibited to protect public safety given the year-round use of these roads by large trucks and heavy equipment. In the proposed rule, the Service proposed to allow the use of wheeled game carts on industrial roads by hunters using these roads on foot for hunting access. We consider this a minor and reasonable change with little potential to impact habitats and/or public safety. Bicycle and/or game cart use of hiking trails and backcountry areas pose more substantive issues because of their potential to impact habitats, create conflicts between trail users, and pose public safety issues. In 2007, the Service evaluated compatibility of several Refuge activities involving general public access, recreation, and transport methods that are non-motorized, including bicycling. In that evaluation, we determined that, subject to Refuge regulations that restrict it to maintained roads open to public vehicular access, which are in place to prevent harm to refuge resources, bicycling was a compatible activity. We did not make any changes to the rule in response to these comments.

(21) Comment: One commenter stated that additional Refuge trails, including trails in the Skilak Lake area, should be closed to horseback riding and packstock use.

Our Response: We proposed, and in this rule make final, a prohibition that horses or other packstock are not allowed on the Fuller Lakes Trail and on all trails within the Skilak WRA and the Refuge Headquarters area. We did not make any changes to the rule in response to this comment.

(22) Comment: Some commenters stated that amending Refuge regulations to allow for noncommercial collection of natural resources (berries, edible plants, shed antlers) is not necessary, as commercial harvest is already prohibited on Alaska refuges and recreational activities are authorized as long as they are compatible with Refuge purposes. The commenters recommended that these uses be addressed through a compatibility determination, as has been the done on other Alaska refuges. A commenter stated that daily and annual limits on the number of shed antlers that could be collected were unnecessary and overly restrictive.

Our Response: Recreational activities, including but not limited to hunting, fishing, nature observation, photography, boating, camping, hiking, picnicking, and other related activities are generally authorized, if compatible (50 CFR 36.31(a)) on refuges in Alaska. This is a regulatory interpretation to implement apparent Congressional intent of ANILCA and often is referred to “Alaska Refuges are open unless closed.”

However, 50 CFR part 36, the Alaska National Wildlife Refuge regulations, are supplemental to other National Wildlife Refuge System (NWRS) regulations. All other NWRS regulations also apply to Alaska refuges unless they are specifically modified or superseded by ANILCA (50 CFR 36.1(a)). ANILCA does not specifically address collection of natural resources. It does address sport hunting, trapping, fishing, commercial fishing, subsistence activities, and traditional means of access. The regulations at 50 CFR 27.51 prohibit the collecting of any plant or animal on any national wildlife refuge without a permit (the definition for animals, specifically fish and wildlife, includes any part of the animal (50 CFR 25.12(a))). 50 CFR 27.61 prohibits the unauthorized removal of natural objects from any national wildlife refuge.

Legal sport hunting, fishing and trapping are not at issue in that they are authorized through licenses, permits, and established regulatory processes. Subsistence take of fish and wildlife is likewise authorized by statute and implementing regulations. Subsistence use of timber and plant material is generally authorized, subject to certain restrictions, at 50 CFR 36.15. 50 CFR 36.15(b) specifically allows for “the noncommercial gathering by local rural residents of fruits, berries, mushrooms, and other plant materials for subsistence uses, and the noncommercial gathering of dead or downed timber for firewood” without a permit. While many refuges in Alaska have determined personal gathering of berries and other natural resources to be compatible, recreational users are not afforded the same authorization under regulations for similar activities on refuges in Alaska (with the exception of firewood gathering by campers at Kenai NWR (50 CFR 36.39(i)(7)(i)(E)). The personal collection, without permit, of animal parts such as bones, skulls, horns, and antlers is also currently not authorized for any member of the public.

Personal, noncommercial use of berries and other edible plant materials, and collection of naturally shed moose and caribou antlers, on some Alaska refuges are desired activities by many visitors. The Service has chosen to authorize this activity, subject to reasonable limitations for the collection of shed antlers, on the Kenai NWR under this rulemaking in recognition of the extent of recreational visitation and scope of this use on this Refuge. The Service may consider authorization of this use on other refuges in Alaska in the future. We did not make any changes to the rule in response to these comments.

(23) Comment: One commenter opposed the proposed food storage requirements, which include required use of bear proof containers, citing high cost of such containers. Some commenters supported the proposed requirements as a means of reducing human-bear conflicts and due to the need for consistency between U.S. Forest Service and Refuge regulations in the Russian River area.

Our Response: Food and retained fish storage regulations have been an integral component of interagency efforts to enhance public safety and wildlife resource conservation by managing wildlife attractants in order to reduce the potential for negative human-bear interactions in the Russian River Special Management Area. This rule codifies and makes permanent food and retained fish storage regulations issued by the Service as temporary restrictions in recent years, and provides consistency with U.S. Forest Service food storage regulations applying to adjacent Chugach National Forest lands (36 CFR 261.58). We did not make any changes to the rule in response to these comments.

(24) Comment: One commenter stated that failure by the Service to announce the dates and locations of public meetings and hearings to be held, or of the Service's intention to hold the meetings and hearings, in the Federal Register may have unduly limited public engagement. The commenter further stated that the proposed rule does not meet the intent of ANILCA's implementing regulations and the Administrative Procedure Act (APA; 5 U.S.C. subchapter II), which specifically recognizes the importance of public meetings associated with rulemaking and of announcing those meetings in the Federal Register.

Our Response: To meet regulatory requirements (50 CFR 36.42) for providing notice and public hearings for this rulemaking, the Service held two public hearings during the open public comment period. Hearings were held on June 17, 2016, in Soldotna, Alaska, and on June 18, 2016, in Anchorage, Alaska. The Service published announcements of the dates, locations, and times of scheduled public hearings to be held in Alaska on the proposed rule following the proposal's publication in the Federal Register on May 21, 2015 (80 FR 29277). Written notice of the dates, locations, and times of the public hearings were posted on the Refuge Web site immediately following publication of the proposed rule in the Federal Register, along with associated information on the proposed rule and its availability for public comment. The public meetings and hearings were also subsequently announced through news releases sent to local (Kenai Peninsula) and Statewide (Anchorage) media outlets including newspaper, radio, and television outlets, and through publication of Legal Notices, which published in local (Peninsula Clarion) and Statewide (Alaska Dispatch News) newspapers.

In this rule, we made some of the revisions to comply with a Presidential mandate to use plain language in regulations; as such, these particular revisions do not modify the substance of the previous regulations. These types of changes include using “you” to refer to the reader and “we” to refer to the Refuge System, using the word “allow” instead of “permit” when we do not require the use of a permit for an activity, and using active voice (i.e., “We restrict entry into the refuge” vs. “Entry into the refuge is restricted”).

Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) will review all significant rules. OIRA has determined that this rule is not significant.

Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.

Under the Regulatory Flexibility Act (as amended by the Small Business Regulatory Enforcement Fairness Act [SBREFA] of 1996) (5 U.S.C. 601 et seq.), whenever a Federal agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Thus, for a regulatory flexibility analysis to be required, impacts must exceed a threshold for “significant impact” and a threshold for a “substantial number of small entities.” See 5 U.S.C. 605(b). SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities.

As described above and in the May 21, 2015, proposed rule (80 FR 29277), the changes in this rule will impact visitor use for wildlife-dependent recreation on the Refuge. Modifying the visitor use regulations will have small incremental changes on total visitor use days associated with particular activities. For example, visitor use associated with aircraft motorboats and collection of natural resources may increase slightly. However, visitor use associated with camping may decline slightly. We estimate that the overall change in recreation use-days will represent less than 1 percent of the average recreation use-days on the Refuge (1 million visitors annually).

Small businesses within the retail trade industry (such as hotels, gas stations, etc.) (NAIC 44) and accommodation and food service establishments (NAIC 72) may be impacted by spending generated by Refuge visitation. Seventy-six percent of establishments in the Kenai Peninsula Borough qualify as small businesses. This statistic is similar for retail trade establishments (72 percent) and accommodation and food service establishments (65 percent). Due to the negligible change in average recreation days, this final rule will have a minimal effect on these small businesses.

With the negligible change in overall visitation anticipated from this final rule, it is unlikely that a substantial number of small entities will have more than a small economic effect. Therefore, we certify that this final rule will not have a significant economic effect on a substantial number of small entities as defined under the Regulatory Flexibility Act. A regulatory flexibility analysis is not required. Accordingly, a Small Entity Compliance Guide is not required.

This final rule is not a major rule under 5 U.S.C. 804(2), the SBREFA. This rule:

a. Will not have an annual effect on the economy of $100 million or more.

b. Will not cause a major increase in costs or prices for consumers; individual industries; federal, State, or local government agencies; or geographic regions.

c. Will not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S. based enterprises to compete with foreign-based enterprises.

As this rule applies to public use on a federally owned and managed Refuge, it will not impose an unfunded mandate on State, local, or Tribal governments or the private sector of more than $100 million per year. The rule will not have a significant or unique effect on State, local, or Tribal governments or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is not required.

In accordance with E.O. 12630, this rule will not have significant takings implications. This rule affects only visitors at Kenai NWR and describes what they can do while on the Refuge.

As discussed in the Regulatory Planning and Review and Unfunded Mandates Reform Act sections, above, this rule will not have sufficient federalism summary impact statement implications to warrant the preparation of a federalism summary impact statement under E.O. 13132. In preparing this rule, we worked with State governments.

This final rule complies with the requirements of Executive Order 12988. Specifically, this rule:

a. Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and

b. Meet criteria of section 3(b) (2) requiring that all regulations be written in clear language and contain clear legal standards.

On May 18, 2001, the President issued E.O. 13211 on regulations that significantly affect energy supply, distribution, or use. E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This rule is not a significant regulatory action under E.O. 12866, and we do not expect it to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.

In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951 (May 4, 1994)), Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments; 65 FR 67249 (November 9, 2000)), and the Department of the Interior Manual, 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. We also complied with 512 DM 4 under Department of the Interior Policy on Consultation with Alaska Native Claims Settlement Act (ANCSA) Corporations, August 10, 2012. We did seek Tribes' and Corporations' input in evaluating the proposed rule. In December 2014, we invited formal consultation in writing to seven Tribes and seven Native Corporations and asked for their input during development of the proposed rule. Concurrently, we provided information on the proposed rule and offered to meet informally to provide additional information. We also sent written correspondence via email to the Tribes and Native Corporations prior to publication of the proposed rule in May 2015, to again offer opportunity for formal consultation and/or informal information exchange, to request input, and to provide notice of the proposal's upcoming publication and the public comment period. We did not receive any requests for government-to-government consultation. We informally discussed the proposed rule as part of meetings with representatives of the Ninilchik Traditional Council and Ninilchik Native Association held primarily to discuss subsistence hunting and fishing on the Refuge, and corresponded via telephone and email with representatives of the Tyonek Native Corporation who had specific questions on the proposed rule.

This rule does not contain any information collection requirements other than those already approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.) and assigned OMB Control Numbers 1018-0102 (expires June 30, 2017), 1018-0140 (expires May 31, 2018), and 1018-0153 (expires December 31, 2018). 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.

We complied with section 7 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.), when we developed the Kenai NWR comprehensive conservation plan.

We analyzed this rule in accordance with the criteria of the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4332(C)), 43 CFR part 46, and 516 Departmental Manual (DM) 8.

A categorical exclusion from NEPA documentation applies to publication of this final rule and ensuing regulations because they are technical and procedural in nature, and the environmental effects are too broad, speculative, or conjectural to lend themselves to meaningful analysis (43 CFR 46.210 and 516 DM 8). We have determined that this final rule is considered a categorical exclusion under 516 DM 8.5(C)(3), which categorically excludes the “issuance of special regulations for public use of Service-managed land, which maintain essentially the permitted level of use and do not continue a level of use that has resulted in adverse environmental impacts.”

This final rule supports the Service's management direction identified through approved Refuge management plans, including the 2010 Kenai NWR revised CCP and the 2007 Kenai NWR Skilak WRA revised final management plan.

For the CCP, we prepared a draft revised CCP and a draft environmental impact statement (DEIS) under NEPA, and made them available for comment for public comment on May 8, 2008 (73 FR 26140). The public comment period on those draft documents began on May 8, 2008, and ended on September 1, 2008. We then prepared our final revised CCP and final EIS, and made them available for public comment for 30 days, beginning August 27, 2009 (74 FR 43718). We announced the availability of the record of decision for the final revised CCP and final EIS on January 11, 2010 (75 FR 1404).

We completed a draft management plan and draft environmental assessment (EA) under NEPA for the Skilak WRA management plan in October 2006. We distributed approximately 2,500 copies to individuals, businesses, agencies, and organizations that had expressed an interest in receiving Kenai NWR planning-related documents. We also announced the availability of these documents through radio stations, television stations, and newspapers on the Kenai Peninsula and in the city of Anchorage. An electronic version of the plan was made available on the Kenai NWR planning Web site, and a Skilak email address was created to facilitate public comment on the draft plan. Presentations were made to the Alaska Board of Game and the Friends of Alaska National Wildlife Refuges. The draft plan and draft environmental assessment (EA) were made available for public review and comment during a 30-day period ending November 17, 2006. We signed a finding of no significant impact (FONSI) for the final revised management plan first on December 6, 2006, and then later (as corrected) on May 11, 2007.

You can obtain copies of the CCP/EIS and the revised final management plan for the Skilak WRA either on the Federal eRulemaking Portal, http://www.regulations.gov, under Docket No. FWS-R7-NWRS-2014-0003, or by contacting the person listed under FOR FURTHER INFORMATION CONTACT.

Andy Loranger, Refuge Manager, Kenai NWR, is the primary author of this rulemaking document.

For the reasons set forth in the preamble, we amend 50 CFR part 36 as follows: