Federal Register Vol. 81, No.94,

Title III of the Energy Policy and Conservation Act of 1975 (42 U.S.C. 6291, et seq.; “EPCA” or, in context, “the Act”) sets forth a variety of provisions designed to improve energy efficiency.1 Part B 2 of Title III establishes the “Energy Conservation Program for Consumer Products Other Than Automobiles.” External power supplies are among the products affected by these provisions.

Under EPCA, the energy conservation program consists essentially of four parts: (1) Testing, (2) labeling, (3) Federal energy conservation standards, and (4) certification and enforcement procedures. The testing requirements consist of test procedures that manufacturers of covered products must use as the basis for (1) certifying to DOE that their products comply with the applicable energy conservation standards adopted under EPCA, and (2) making representations about the efficiency of those products. Similarly, DOE must use these test procedures to determine whether the products comply with any relevant standards promulgated under EPCA.

Section 301 of EISA 2007 established minimum energy conservation standards for Class A external power supplies (“EPSs”) manufactured on or after July 1, 2008. (42 U.S.C. 6295(u)(3)(A)). See 42 U.S.C. 6291(36)(C)(i)-(ii). EISA 2007 exempts Class A EPSs from meeting these statutorily-prescribed standards if the devices were manufactured before July 1, 2015, and made available by the manufacturer as service parts or spare parts for end-use consumer products that were manufactured prior to July 1, 2008. (42 U.S.C. 6295(u)(3)(B)) Congress created this limited (and temporary) exemption as part of a broad range of amendments to EPCA under EISA 2007. The provision did not grant DOE with the authority to expand or extend the length of this exemption and Congress did not grant DOE with the general authority to exempt any already covered product from the requirements set by Congress.

After releasing a preliminary analysis and issuing a proposed set of energy conservation standards, DOE published a final rule prescribing new standards for non-Class A EPSs and amended standards for some Class A EPSs. See 79 FR 7846 (February 10, 2014). These new standards, commonly referred to as Level VI efficiency standards because EPSs subject to these standards are required to be marked with the Roman numeral VI according to the External Power Supply International Efficiency Marking Protocol, apply to products manufactured on or after February 10, 2016. When DOE published the rule, it did not have the authority to provide manufacturers with an exemption for EPSs manufactured after to the compliance date of these new standards if they were made available as service or spare parts to end-use consumer products. Accordingly, despite requests from some commenters who responded to DOE's proposed standards by asking for such an exemption, DOE could provide no such relief as part of that final rule.

On December 18, 2014, Congress enacted the EPS Service Parts Act of 2014 (“Service Parts Act”). That law exempted manufacturers of certain EPSs that are made available as service and spare parts for end-use products manufactured before February 10, 2016 from the energy conservation standards that DOE promulgated in its February 2014 rule. To be exempt under the Service Parts Act, an EPS must meet four separate criteria. Specifically, the EPS must be: (i) Manufactured during the period beginning on February 10, 2016, and ending on February 10, 2020; (ii) marked in accordance with the External Power Supply International Efficiency Marking Protocol; (iii) compliant, where applicable, with the standards for Class A EPSs and certified to DOE as meeting at least International Efficiency Level IV; and (iv) made available by the manufacturer as a service part or spare part for an end-use product manufactured before February 10, 2016.

Additionally, the Service Parts Act permits DOE to require manufacturers of an EPS that is exempt from the 2016 standards to report to DOE the total number of such EPS units that are shipped annually as service and spare parts and that do not meet those standards. See 42 U.S.C. 6295(u)(5)(A)(ii). DOE may also limit the applicability of the exemption if the Secretary determines that the exemption is resulting in a significant reduction of the energy savings that would result in the absence of the exemption. See 42 U.S.C. 6295(u)(5)(A)(iii). Finally, the statute authorizes DOE to provide a similar exemption for EPSs from future energy conservation standards.

On November 18, 2015, DOE published a notice of proposed rulemaking (“NOPR”) proposing to codify the provisions of the EPS Service Parts Act of 2014 within the Code of Federal Regulations (“CFR”) and solicited comment from the public. 80 FR 71984. As part of the NOPR, DOE sought comment on a number of specific issues including: How manufacturers produce spare or service parts as compared to how manufacturers produce EPS units provided with a new product, the specific language that should be codified regarding the exemption of certain EPSs sold as service or spare parts, and the reporting timeframe for importers and domestic manufacturers to report the total number of units sold in the prior year. DOE analyzed all of the comments received from the list of commenters in Table I-1 in response to the 2015 NOPR and incorporated recommendations, where appropriate, into this final rule.

DOE is incorporating the statutory provisions described in this preamble into its regulations. DOE is also providing some clarification on the circumstances under which EPSs would be considered spare or service parts. Lastly, DOE is requiring manufacturers who manufacture 1,000 or more exempt EPSs to annually report to DOE the total number of units of exempt EPSs shipped as service and spare parts that do not meet the 2016 standards.

DOE is incorporating the provisions of the Service Parts Act into 10 CFR 430.32 to ensure that the regulations reflect the statutory exemption and that interested parties are able to readily access the content of this new statutory provision. Additionally, since the exemption from the Class A (Level IV) standards for certain EPSs that are made available as service and spare parts expired on June 30, 2015, DOE is also removing the text related to this now-expired exemption from 10 CFR 4320.32(w)(2), and replacing it with the new provisions of the Service Parts Act that exempt certain EPSs from the new and amended direct operation (Level VI) standards.

In the NOPR, DOE explained that the Service Parts Act provides an exemption for certain EPSs that are made available by manufacturers as service or spare parts. DOE observed that most end-use products that use EPSs are sold with the EPS that is necessary to operate that product. DOE proposed that, in applying the statutory exemption, an EPS that is sold with an end-use product would not be considered to be a service or spare part. However, DOE noted that, in its view, any EPS sold separately from an end-use product, including an EPS made available as a replacement for, or in addition to, the EPS originally sold with an end-use product, would be considered an EPS made available as a service or spare part—which would make that EPS potentially eligible to be exempt from the 2016 standards under the Service Parts Act.

To further clarify its application of this statutory exemption, DOE proposed that only those EPSs that are made available as service or spare parts for end-use products that were manufactured before February 10, 2016 (the date that manufacturers must comply with the new and amended standards for direct operation EPSs) would qualify for the exemption. DOE proposed, accordingly, that if an EPS is made available as a service part or spare part for any end-use product that continues to be manufactured after February 10, 2016, or is sold with any end-use product manufactured after that date, that EPS would not be eligible for the exemption.

In the NOPR, DOE further recognized that many EPSs, like those that use an industry standard communication protocol, such as the universal serial bus (“USB”), may be capable of operating many different end-use products. To apply the statutory exemption to the “basic model” concept used in its regulatory scheme, DOE proposed that the exemption would apply to an EPS basic model that a manufacturer makes available only as a service part or a spare part for an end-use product that was manufactured before February 10, 2016, and would not apply to an EPS basic model that a manufacturer makes available as a service part or spare part for end-use products that continue to be manufactured after February 10, 2016. Thus, an EPS basic model would be exempt from the 2016 Level VI standard if, among other criteria, it is made available by the manufacturer only as a service part or a spare part for an end-use product, and only if the end-use product was manufactured before February 10, 2016. DOE sought comment on this proposal from stakeholders and interested parties.

ASAP, et al. supported DOE's efforts to construct a narrowly-defined exemption for EPSs offered as service or spare parts to aid in limiting the sale of a larger number of EPSs than warranted by the intent of the law, stating that “abuse of the exemption could significantly reduce energy savings from the EPS standards.” (ASAP, et al., No. 2 at p.2) AHAM, et al. also expressed support for DOE's proposal in their comments noting that “this is a sensible exemption that will allow manufacturers to maintain supplies of replacement parts for older equipment and will also allow warranty and contract compliance by manufacturers, as well as manufacturer compliance with state parts retention laws.” (AHAM, et al., No. 3 at p.1)

Similarly, ASAP, et al. strongly supported DOE's interpretation that the exemption should not apply to EPSs made available as spare or service parts that are sold with products manufactured after February 10, 2016. ASAP, et al. asserted that the redesign of EPSs for products manufactured afterward is justified because an EPS that is sold with a product manufactured after February 10, 2016, would already be required to meet the new standards, and thus it does not create undue burden on industry to ensure that EPSs made available as spare or service parts for those same end-use products also comply with the new standards. (ASAP, et al., No. 2 at p.3) The CA IOUs agreed that any spare or service EPS for products manufactured after the compliance date should comply with the 2016 standards because redesigning an EPS or designing a substitute EPS to comply with the standards would not be a significant burden for manufacturers to meet. (CA IOUs, No. 5 at p.2) The CA IOUs also supported DOE's interpretation that the exemption would not apply to EPSs that are sold as spare or service parts but are capable of operating end-use products manufactured both before and after the compliance date. In their collective view, meeting the 2016 standard would not be an undue burden for manufacturers to meet. (CA IOUs, No. 5 at p.2)

ITI disagreed. In its view, the Service Parts Act exemption should apply to all EPSs made available as spare or service parts for end-use products manufactured prior to the 2016 compliance date. (ITI, No. 4 at p.1) It argued that DOE's proposed clarification would deny this exemption to many USBs and other EPSs capable of operating multiple end-use products contrary to the required exemption of the Service Parts Act. ITI further claimed that the apparent reduction in scope of the exemption provides insufficient notice to manufacturers as they were anticipating the exemption to reflect what they believed would be the clear language and scope of the enacted law. (ITI, No. 4 at p.2)

In the NOPR, DOE misstated in one place that, if an EPS is capable of operating multiple end-use products, some of which were manufactured before February 10, 2016, and some of which were manufactured after February 10, 2016, then that EPS would not be eligible for the service and spare part exemption since the EPS can operate an end-use product manufactured after February 10, 2016. 80 FR at 71986. DOE understands that this statement in the preamble may have caused confusion. The exemption as DOE proposed in the NOPR, would apply to an EPS basic model that is “made available by the manufacturer only as a service part or a spare part for an end-use product.” Id. at 71990 (emphasis added). DOE clarifies, and this rule establishes, that an EPS that is capable of operating end-use products manufactured on or after February 10, 2016, could be exempt, provided that the manufacturer makes the relevant basic model available only as a service part or spare part for end-use products manufactured before February 10, 2016.

Given the nature of DOE's regulatory scheme, under which the non-compliance of a product is determined on a basic model, not unit-by-unit, basis, this final rule offers a reasonable approach in applying the Service Parts Act's exemption. See 10 CFR 429.114. Applied otherwise, a basic model of EPS would be wholly exempt (i.e., all units of the basic model) from the Level VI standard based solely on the fact that as few as one unit of the basic model was made available by the manufacturer as a service part or a spare part for an end-use product manufactured before February 10, 2016. DOE declines to adopt an interpretation of the statutory exemption that would offer a blanket exemption to such a basic model.

Therefore, DOE is finalizing its proposal that this exemption would apply to an EPS basic model that a manufacturer makes available only as a service part or a spare part for an end-use product that was manufactured before February 10, 2016, and would not apply to an EPS basic model that a manufacturer makes available as a service part or spare part for end-use products that continue to be manufactured after February 10, 2016.

The Service Parts Act permits DOE to require manufacturers of an EPS that is exempt from the 2016 standards to report to DOE the total number of such EPS units that are shipped annually as service and spare parts and that do not meet those standards. See 42 U.S.C. 6295(u)(5)(A)(ii). DOE stated that it considered the “shipments” referred to in the statute to be those units sold by either the importer or the domestic manufacturer, and that because importers could have both incoming and outgoing shipments, DOE considered “units sold” to be clearer than “units shipped.” See 42 U.S.C. 6291(12) (under EPCA, “manufacture” means “to manufacture, produce, assemble or import”).

Accordingly, consistent with the Service Parts Act, DOE proposed that importers and domestic manufacturers of EPSs that are exempt under the Service Parts Act would be required to report annually to DOE the total number of exempt EPS units that were sold during the most recent 12-calendar-month period ending on July 31 that do not meet the 2016 standards. 80 FR at 71986. DOE received no comments specifically with regard to the use of the word “sold” as opposed to “shipped” in this context, and will use the word “sold” in its reporting requirement, as proposed in the NOPR.

DOE explained in the NOPR that many of the EPSs sold as spare and service parts are Class A EPSs and they continue to be subject to the current Class A EPS standards (i.e. Level IV) set forth in 10 CFR 430.32(w)(1)(i). As such, manufacturers of any basic model of a Class A EPS must already submit an annual certification report to DOE. See 10 CFR 429.12. Moreover, the Service Parts Act requires that an EPS must be certified to DOE as meeting Level IV standards in order to qualify for the exemption. Therefore, DOE proposed that each manufacturer of exempt Class A EPSs include in its annual report certifying compliance with Level IV standards the number of units of each individual model of such EPS it sold in the preceding year that do not meet the Level VI standards.

Similarly, DOE proposed to require each importer or domestic manufacturer of non-Class A EPSs that are exempted by the Service Parts Act and do not meet the 2016 standards to submit an annual report of the corresponding number of units of each individual model of such EPS that the importer or domestic manufacturer sold in the prior year. These non-Class A EPSs include multiple-voltage EPSs, high-power EPSs, and some EPSs used to operate end-use products that are motor-driven. Under DOE's February 2014 final rule, non-Class A EPSs, unless exempt, are required to meet the Level VI standards starting in 2016. These non-class A EPSs would not be certified under the provisions of 10 CFR 429.12 (General requirements applicable to certification reports), if they are exempt, but under DOE's proposal, manufacturers of these EPSs would be required to submit a report including the number of exempt EPSs sold.

Separately, the Service Parts Act authorizes DOE to limit the applicability of the service and spare part exemption if DOE determines that the exemption is resulting in a significant reduction of the energy savings that would otherwise result from the final rule. See 42 U.S.C. 6295(u)(5)(A)(iii). Having information regarding the number of exempt units sold would aid DOE in making this determination.

ASAP, et al. noted that reporting is vital to DOE's ability to assess the impact of the EPS Service Parts Act of 2014 on the energy savings projected by the 2014 standards and supported DOE's proposal to extend the reporting requirements to non-Class A EPSs that are subject to federal efficiency standards. (ASAP, et al., No. 2 at p.3) The CA IOUs also supported DOE's proposals, noting that ensuring applicable EPS units that are subject to current efficiency requirements continue to meet these standards would prevent potential backsliding and an accompanying loss of energy savings. The CA IOUs also strongly supported having domestic manufacturers and importers report to DOE the total number of exempt EPS units sold on an annual basis to help ensure that energy savings from the 2014 standards are realized. (CA IOUs, No. 5 at p.2)

AHAM, et al., however, expressed concern over DOE's reporting requirement proposals. AHAM, et al. noted that most companies have low shipment volumes of spare and service parts for products manufactured prior to the compliance date and that the cost of reporting these data would outweigh the data collection efforts on a per model basis. Alternatively, AHAM, et al. recommended that DOE modify its reporting requirements to simplify the requirements to one report per manufacturer rather than one report per model and only require a report submission if the quantity of service and spare part EPSs exceeds 1,000 units. (AHAM, et al., No. 3 at p.2) AHAM, et al. concluded by stating its belief that the reporting requirements proposed by DOE exceed the authority granted by the EPS Service Parts Act of 2014 and recommended that the reporting requirements be limited to unit shipment volumes as permitted under the Service Parts Act. (AHAM, et al., No. 3 at p.3)

Reporting requirements in this instance serve a variety of important and useful roles, among which include helping DOE assess the impacts of the Service Parts Act's exemption on overall national energy savings. Notwithstanding this fact, DOE recognizes that reporting requirements may create a burden and has modified its proposal from the NOPR to allow manufacturers or domestic importers to report the total annual number of exempt EPSs sold as spare or service parts rather than requiring individual reporting on a per model basis, as suggested by AHAM. Under DOE's revised reporting methodology, manufacturers or importers would only need to track and report the total number of exempt EPSs sold.

DOE also recognizes the reporting burdens for manufacturers that sell only a small number of exempt units. Accordingly, consistent with the authority provided to DOE by the Service Parts Act, DOE will adopt AHAM's suggestion and relieve manufacturers from the sales reporting requirements contained in this final rule provided that the quantity of exempt service and spare part EPSs sold by that manufacturer does not exceed 1,000 units annually. This 1,000 unit threshold will apply to the total number of exempt EPSs sold annually by that manufacturer (including importers) in aggregate and not on a per model basis. Consequently, a manufacturer would not be exempt from the reporting requirements if it sells more than one exempt model of EPS, each of which it sells less than 1,000 of annually, but, in aggregate, the total number of exempt EPSs sold by that manufacturer exceeds 1,000 across all models. DOE is modifying the regulatory text in the CFR to reflect this approach.

The Office of Management and Budget (“OMB”) has determined that certification rulemakings do not constitute “significant regulatory actions” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, 58 FR 51735 (Oct. 4, 1993). Accordingly, this action was not subject to review under the Executive Order by the Office of Information and Regulatory Affairs (“OIRA”) in the Office of Management and Budget.

The Regulatory Flexibility Act (5 U.S.C. 601, et seq.) requires preparation of an initial regulatory flexibility analysis (“IFRA”) 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. As required by Executive Order 13272, “Proper Consideration of Small Entities in Agency Rulemaking,” 67 FR 53461 (August 16, 2002), DOE published procedures and policies on February 19, 2003, to ensure that the potential impacts of its rules on small entities are properly considered during the DOE rulemaking process. 68 FR 7990. DOE has made its procedures and policies available on the Office of the General Counsel's Web site: http://energy.gov/gc/office-general-counsel.

For manufacturers of EPSs, the Small Business Administration (“SBA”) has set a size threshold, which defines those entities classified as “small businesses” for the purposes of the statute. DOE used the SBA's small business size standards to determine whether any small entities would be subject to the requirements of the rule. 65 FR 30836, 30848 (May 15, 2000), as amended at 65 FR 53533, 53544 (September 5, 2000) and codified at 13 CFR part 121. The size standards are listed by North American Industry Classification System (“NAICS”) code and industry description and are available at http://www.sba.gov/content/summary-size-standards-industry. EPS manufacturing is classified under NAICS 335999, “All Other Miscellaneous Electrical Equipment and Component Manufacturing.” The SBA sets a threshold of 500 employees or less for an entity to be considered as a small business for this category. As a preliminary matter, DOE notes that there are no domestic manufacturers of EPSs. Consequently, there are no small business impacts to evaluate for purposes of the Regulatory Flexibility Act.

Notwithstanding the absence of domestic EPS manufacturers, DOE reviewed this final rule under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. This final rule would incorporate into DOE's regulations a statutorily-prescribed exemption affecting EPSs that manufacturers make available as service or spare parts. The exemption allows manufacturers to maintain and distribute supplies of replacement parts for older equipment without needing to meet the EPS energy conservation standards that have applied since February 10, 2016. This exemption provides manufacturers with flexibility in meeting their warranty and contract obligations in cases where service or spare parts require an EPS. It also relieves manufacturers of the burdens of redesigning and certifying EPSs used for end-use products that are no longer manufactured, which DOE anticipates will save these manufacturers from any significant expenses that would otherwise be used solely to support products that are no longer in production. As for the reporting requirements, DOE is, consistent with comments received from industry participants, adopting an approach that requires only manufacturers who sell 1,000 or more exempt EPSs to report its shipped units—an amount that will considerably lessen any small business-related impacts.

Consistent with its prior incorporation of the previous statutory exemption added by Congress for Class A EPSs made available as service and spare parts, see 10 CFR 430.32(w)(2) (2015), DOE expects any potential impact from its requirement to be minimal. For these reasons, DOE certifies that the final rule would not have a significant economic impact on a substantial number of small entities. Accordingly, DOE has not prepared a regulatory flexibility analysis for this rulemaking. DOE will transmit the certification and supporting statement of factual basis to the Chief Counsel for Advocacy of the SBA for review under 5 U.S.C. 605(b).

This rule revises an existing information collection. This information collection request contains:

(1) OMB Control Number: 1910-1400.

(2) Information Collection Request Title: Certification Reports, Compliance Statements, Application for a Test Procedure Waiver, and Recordkeeping for Consumer Products and Commercial/Industrial Equipment Subject to Energy or Water Conservation Standards.

(3) Type of Request: Revision of a Currently Approved Collection.

(4) Purpose: This notice will require external power supply manufacturers to report the number of exempt EPS units sold as part of the annual certification report, which is already required. The annual certification report must be submitted via CCMS, an electronic system for recording and processing certification submissions.

Manufacturers of EPSs must certify to DOE that their products comply with any applicable energy conservation standards. In certifying compliance, manufacturers must test their products according to the DOE test procedures for EPSs including any amendments adopted for those test procedures. DOE has established regulations for the certification and recordkeeping requirements for all covered consumer products and commercial equipment, including external power supplies. See 10 CFR part 429, subpart B. The collection-of-information requirement for certification and recordkeeping is subject to review and approval by OMB under the Paperwork Reduction Act (“PRA”). This requirement has been approved by OMB under OMB Control Number 1910-1400. Public reporting burden for the proposed certification requirement is estimated to average 30 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

In this final rule, DOE is finalizing requirements for external power supply manufacturers to provide the total number of exempt EPS units sold as service and spare parts for which the manufacturer is claiming exemption from the current standards. The following are DOE's estimates, revised from the value originally proposed in the NOPR, of the time for manufacturers to collect, organize and store the data required by this final rule. As part of this final rule, manufacturers will not be required to provide the total number of exempt EPS units sold for each basic model, and instead will only provide the total number of exempt EPSs sold by that manufacturer. Additionally, manufacturers who sell under 1,000 exempt EPSs will be exempt from reporting requirements. Accordingly, DOE anticipates the impact in burden hours will be reduced from the estimates provided in the NOPR. DOE has increased the cost estimate for the NOPR to a fully burdened labor rate of $100 per hour, consistent with other certification requirements, to account for any skilled labor that may be required. DOE has revised its burden estimates to be consistent with the amendments being adopted in this final rule for reporting. DOE is showing the burden estimates for the individual amendments being adopted today and for the information collection as a whole.

Affected Public with respect to this final rule: Manufacturers of external power supplies that are claiming the spare parts exemption.

Estimated Number of Impacted Manufacturers: 228.

Estimated Time per Record: 4 minutes.

Estimated Total Annual Burden Hours: 15.2 hours.

Estimated Total Annual Cost to Manufacturers: $1520.

After adding the values for this final rule to the existing information collection requirements, the following totals reflect the information collection as a whole:

(5) Annual Estimated Number of Respondents: 2000.

(6) Annual Estimated Number of Total Responses: 20,000.

(7) Annual Estimated Number of Burden Hours: 68,015.2 hours.

(8) Annual Estimated Reporting and Recordkeeping Cost Burden: $6,801,520.

Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.

DOE has determined that this final rule, which would incorporate a recently-enacted exemption into the CFR for EPSs sold as spare or service parts, 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 final rule would adopt changes to the manner in which certain covered equipment would be certified and/or reported, which would not affect the amount, quality or distribution of energy usage, and, therefore, would not result in any environmental impacts. Thus, this rulemaking is covered by Categorical Exclusion A6 (Procedural Rulemaking) under 10 CFR part 1021, subpart D. Accordingly, neither an environmental assessment nor an environmental impact statement is required.

Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999) imposes certain requirements on 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 has examined this final rule and has determined that it would 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 products 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.

Regarding the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (February 7, 1996), 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; (3) provide a clear legal standard for affected conduct rather than a general standard; and (4) promote simplification and burden reduction. 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 sections 3(a) and 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, the final 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 likely to result 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 “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 them. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. 62 FR 12820. DOE's policy statement is also available at http://energy.gov/sites/prod/files/gcprod/documents/umra_97.pdf.

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 would 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 (March 18, 1988), that this rule 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 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 (February 22, 2002), and DOE's guidelines were published at 67 FR 62446 (October 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 promulgates 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 should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use.

This regulatory action to amend the existing certification requirements for EPSs sold as spare parts is not a significant regulatory action under Executive Order 12866. 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.

Under section 301 of the Department of Energy Organization Act (Public Law 95-91; 42 U.S.C. 7101), DOE must comply with section 32 of the Federal Energy Administration Act of 1974, as amended by the Federal Energy Administration Authorization Act of 1977. (15 U.S.C. 788; FEAA) Section 32 essentially provides in relevant part that, where a proposed rule authorizes or requires use of commercial standards, the notice of proposed rulemaking must inform the public of the use and background of such standards. In addition, section 32(c) requires DOE to consult with the Attorney General and the Chairman of the Federal Trade Commission (“FTC”) concerning the impact of the commercial or industry standards on competition. This proposal to amend the certification requirements for all covered consumer products does not propose the use of any commercial standards.

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 stated in the preamble, DOE amends parts 429 and 430 of chapter II of title 10, Code of Federal Regulations as set forth below:

The FAA has determined, in accordance with 5 U.S.C. 553(b)(3)(B) and 553(d)(3), that notice and opportunity for prior public comment hereon are unnecessary because the substance of this special condition has been subject to the public comment process in several prior instances with no substantive comments received. The FAA, therefore, finds that good cause exists for making these special conditions effective upon issuance.

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

We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions based on the comments we receive.

On March 25, 2015, Peregrine applied for a supplemental type certificate (STC) to install a rechargeable lithium battery on the Cessna Models 208 and 208B Caravan airplanes. Both the 208 and 208B are normal category airplanes, powered by a single-turbine engine that drives an aircraft propeller, with passenger seating up to eleven (11) and a maximum takeoff weight of 8,000 and 8,750 pounds respectively.

The current regulatory requirements for part 23 airplanes do not contain adequate requirements for the application of rechargeable lithium batteries in airborne applications. This type of battery possesses certain failure and operational characteristics with maintenance requirements that differ significantly from that of the Ni-Cd and lead-acid rechargeable batteries currently approved in other normal, utility, acrobatic, and commuter category airplanes. Therefore, the FAA is proposing this special condition to address (1) all characteristics of the rechargeable lithium batteries and their installation that could affect safe operation of the modified 208 and 208B airplanes, and (2) appropriate Instructions for Continued Airworthiness (ICAW) that include maintenance requirements to ensure the availability of electrical power from the batteries when needed.

Under the provisions of Title 14, Code of Federal Regulations (CFR) 21.101, Peregrine must show that the 208 and 208B airplanes, as changed, continue to meet the applicable provisions of the regulations incorporated by reference in Type Certificate Data Sheet No. A37CE, or the applicable regulations in effect on the date of application for the change.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 23) do not contain adequate or appropriate safety standards for the 208 and 208B airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

In addition to the applicable airworthiness regulations and special conditions, the 208 and 208B airplanes must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.

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

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

The Cessna Models 208 and 208B airplanes will incorporate the following novel or unusual design features:

The installation of a rechargeable lithium battery as a main or engine start aircraft battery.

The applicable part 23 airworthiness regulations governing the installation of batteries in general aviation airplanes, including § 23.1353, were derived from Civil Air Regulations (CAR) 3 as part of the recodification that established 14 CFR part 23. The battery requirements, which are identified in § 23.1353, were a rewording of the CAR requirements that did not add any substantive technical requirements. An increase in incidents involving battery fires and failures that accompanied the increased use of Ni-Cd batteries in aircraft resulted in rulemaking activities on the battery requirements for transport category airplanes. These regulations were incorporated into § 23.1353(f) and (g), which apply only to Ni-Cd battery installations.

The introduction of lithium batteries into aircraft raises some concern about associated battery or cell monitoring systems and the impact to the electrical system when monitoring components fail. Associated battery or cell monitoring systems (e.g., temperature, state of charge, etc.) should be evaluated with respect the expected extremes in the aircraft operating environment.

Lithium batteries typically have different electrical impedance characteristics than Ni-Cd or lead-acid batteries. Peregrine needs to evaluate other components of the aircraft electrical system with respect to these characteristics.

Presently, there is limited experience with use of rechargeable lithium batteries and rechargeable lithium battery systems in applications involving commercial aviation. However, other users of this technology, ranging from personal computers, wireless telephone manufacturers to the electric vehicle industry, have noted safety problems with rechargeable lithium batteries. These problems include overcharging, over-discharging, flammability of cell components, cell internal defects, and during exposure to extreme temperatures that are described in the following paragraphs.

1. Overcharging: In general, rechargeable lithium batteries are significantly more susceptible to internal failures that can result in self-sustaining increases in temperature and pressure (e.g., thermal runaway) than their Ni-Cd or lead-acid counterparts. This is especially true for overcharging which causes heating and destabilization of the components of the cell, leading to the formation (by plating) of highly unstable metallic lithium. The metallic lithium can ignite, resulting in a self-sustaining fire or explosion. Finally, the severity of thermal runaway due to overcharging increases with increasing battery capacity due to the higher amount of electrolyte in large batteries.

2. Over-discharging: Discharge of some types of rechargeable lithium battery cells beyond the manufacturer's recommended specification can cause corrosion of the electrodes of the cell, resulting in loss of battery capacity that cannot be reversed by recharging. This loss of capacity may not be detected by the simple voltage measurements commonly available to flight crews as a means of checking battery status—a problem shared with Ni-Cd batteries. In addition, over-discharging has the potential to lead to an unsafe condition (creation of dendrites that could result in internal short circuit during the recharging cycle).

3. Flammability of Cell Components: Unlike Ni-Cd and lead-acid batteries, some types of rechargeable lithium batteries use liquid electrolytes that are flammable. The electrolyte can serve as a source of fuel for an external fire, if there is a breach of the battery container.

4. Cell Internal Defects: The rechargeable lithium batteries and rechargeable battery systems have a history of undetected cell internal defects. These defects may or may not be detected during normal operational evaluation, test and validation. This may lead to an unsafe condition during in service operation.

5. Extreme Temperatures: Exposure to an extreme temperature environment has the potential to create major hazards. Care must be taken to ensure that the lithium battery remains within the manufacturer's recommended specification.

These problems experienced by users of lithium batteries raise concern about the use of lithium batteries in aviation. The intent of the proposed special condition is to establish appropriate airworthiness standards for lithium battery installations in the 208 and 208B airplanes and to ensure, as required by §§ 23.1309 and 23.601, that these battery installations are not hazardous or unreliable.

The special conditions are applicable to the 208 and 208B airplanes. Should Peregrine apply at a later date for an STC to modify any other model included on Type Certificate No. A37CE to incorporate the same novel or unusual design feature, the special conditions would apply to that model as well.

This action affects only certain novel or unusual design features on the 208 and 208B airplanes. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.

The substance of these special conditions has been subjected to the notice and comment period in several prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the subject contained herein. Therefore, notice and opportunity for prior public comment hereon are unnecessary and the FAA finds good cause, in accordance with 5 U.S.C. 553(b)(3)(B) and 553(d)(3), making these special conditions effective upon issuance. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 737-100, -200, -200C, -300, -400, and -500 series airplanes. The NPRM published in the Federal Register on July 20, 2015 (80 FR 42756) (“the NPRM”). The NPRM was prompted by reports of cracked antenna support channels, skin cracking underneath the number 2 VHF antenna, and cracking in the frames attached to the internal support structure. The NPRM proposed to require repetitive inspections to determine the condition of the skin and the internal support structure, and follow-on actions including corrective action as necessary. We are issuing this AD to detect and correct skin cracking of the fuselage. Such cracking could result in separation of the number 2 VHF antenna from the airplane and rapid depressurization of the cabin.

We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM and the FAA's response to each comment. Boeing concurred with the NPRM.

Southwest Airlines requested that we correct a typographical error in paragraph (h)(4) of the proposed AD, which states that accomplishment of the preventative modification terminates the inspection required by “paragraphs (g), (g)(1), and (h)(2) of the AD.” Southwest Airlines noted that the NPRM does not contain paragraph (g)(1). Southwest Airlines concluded that this appears to be a typographical error and the references to paragraphs (g) and (g)(1) of the proposed AD should be to paragraphs (h) and (h)(1) of the proposed AD, similar to what is stated in paragraph (k)(3) of the proposed AD.

British Airways stated that it has identified a potential contradiction between paragraphs (h)(4) and (k)(3) of the proposed AD. British Airways stated that paragraph (h)(4) of the proposed AD refers to paragraph (h)(2), whereas paragraph (k)(3) of the proposed AD refers to paragraphs (h), (h)(1), and (h)(2) of the proposed AD.

We agree to revise paragraph (h)(4) of this AD because there is a typographical error. We have changed the references in paragraph (h)(4) of this AD to specify paragraphs (h), (h)(1), and (h)(2) of this AD. This change resolves the contradiction noted by British Airways.

Southwest Airlines requested that we provide a provision to terminate the inspections required by paragraph (h) of the proposed AD for previously installed repairs that have received FAA approval. The commenter stated that these repairs would inhibit the inspections required by paragraph (h) of this AD.

We do not agree with the commenter's request because previously installed FAA-approved repairs may not have been designed to address the specified unsafe condition identified in this AD. We understand that some of these repairs may not allow inspection of the area specified in the AD; in those cases, the operator must request approval for an alternative method of compliance (AMOC) according to paragraph (m) of this AD. We have not revised this AD in this regard.

British Airways asked why the terminating action specified in paragraph (k)(3) of the proposed AD is not included in the text “until the accomplishment of paragraphs” references in paragraphs (h)(1) and (h)(2) of the proposed AD. We infer British Airways is requesting that we revise paragraphs (h)(1) and (h)(2) of the proposed AD.

We agree with the commenter because installation of the preventive modification in accordance with paragraph (k)(3) of this AD is acceptable for terminating the repetitive inspections. In addition, we note the reference to paragraph (k)(1) of this AD in paragraph (h)(2) of this AD is redundant. We have made the following changes to this AD:

• In paragraph (h)(1) of this AD, we specify to repeat the inspections “until the accomplishment of paragraph (k)(1), (k)(2), or (k)(3) of this AD, as applicable.”

• In paragraph (h)(2) of this AD, we specify to repeat the inspections “until the accomplishment of paragraph (k)(2) or (k)(3) of this AD, as applicable.”

Southwest Airlines requested a correction to the language in paragraph (h)(2) of the proposed AD to add the term “as applicable” after the listed inspections. Southwest Airlines stated that there are multiple sections of Part 2 of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 737-53-1159, Revision 1, dated October 20, 2014. Southwest Airlines noted that each group/configuration has its own Part 2 instructions and that Groups 3 through 6, Configurations 2 and 3, do not contain instructions for internal detailed inspections or internal high frequency eddy current inspections.

We agree with the commenter because certain inspections are applicable to only certain configurations. We have added the language “as applicable” to paragraph (h)(2) of this AD.

Southwest Airlines requested that we revise paragraph (k)(2) of the proposed AD to include a statement that accomplishment of the repair specified in paragraph (h)(3) of the proposed AD also terminates the preventive modification specified in paragraph (h)(4) of the proposed AD. Southwest Airlines stated that there is no language in the NPRM or Boeing Special Attention Service Bulletin 737-53-1159, Revision 1, dated October 20, 2014, that states whether the preventative modification is required after the repair is installed.

We do not agree with the commenter's request because, for some airplane configurations, the repair only installs an external skin doubler and the preventative modification includes replacement of the internal support structure. For some airplane configurations, the preventive modification specified in Part 4 of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 737-53-1159, Revision 1, dated October 20, 2014, is required after installation of the repair specified in Part 3 of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 737-53-1159, Revision 1, dated October 20, 2014. We have not revised this AD in this regard.

Southwest Airlines requested that we revise paragraph (k)(2) of the proposed AD to specify the repair also terminates the initial inspections in paragraph (h) of the proposed AD. Southwest Airlines stated that the current statement in paragraph (k)(2) of the proposed AD does not address a terminating action for the initial inspection specified in paragraphs (h)(1) and (h)(2) of the proposed AD for aircraft that have previously installed the repair specified in paragraph (h)(3) of the proposed AD.

We agree with the commenter's request because repairs installed in accordance with Part 3 of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 737-53-1159, Revision 1, dated October 20, 2014, prior to the effective date of this AD, will not allow accomplishment of the initial inspections as specified in paragraph (h) of this AD. We revised paragraph (k)(2) of this AD to specify that accomplishment of the repair required by paragraph (h)(3) of this AD terminates the initial and repetitive inspections required in paragraphs (h), (h)(1), and (h)(2) of this AD.

Aviation Partners Boeing stated that accomplishing Supplemental Type Certificate (STC) ST01219SE (http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgstc.nsf/0/be866b732f6cf31086257b9700692796/$FILE/ST01219SE.pdf) does not affect the actions specified in the NPRM.

We concur with the commenter. We have redesignated paragraph (c) of the proposed AD as paragraph (c)(1) of this AD and added new paragraph (c)(2) to this AD to state that installation of STC ST01219SE does not affect the ability to accomplish the actions required by this AD. Therefore, for airplanes on which STC ST01219SE is installed, a “change in product” AMOC approval request is not necessary to comply with the requirements of 14 CFR 39.17.

We have revised paragraph (j) of this AD to clarify that the post-repair and post-modification inspections are airworthiness limitations that are required by maintenance and operational rules; therefore, these inspections are not required by this AD.

We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this AD with the changes described previously and minor editorial changes. We have determined that these minor changes:

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

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

We also determined that these changes will not increase the economic burden on any operator or increase the scope of this AD.

We reviewed Boeing Special Attention Service Bulletin 737-53-1159, Revision 1, dated October 20, 2014. The service information describes procedures for repetitive inspections to determine the condition of the skin and the internal support structure, and follow-on actions including corrective action as necessary. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD affects 609 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

We estimate the following costs to do any necessary repairs/modifications that would be required based on the results of the inspections. We have no way of determining the number of aircraft that might need these repairs/modifications.

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

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

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

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

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

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

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

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

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

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all The Boeing Company Model 757 airplanes. The NPRM published in the Federal Register on August 19, 2015 (80 FR 50230) (“the NPRM”). The NPRM was prompted by reports of cracking in the fuselage frame at Station (STA) 1440, stringer 24L. The NPRM proposed to require inspections for cracking in the fuselage frame, left and right sides, and repair if necessary. We are issuing this AD to detect and correct fuselage frame fatigue cracking. Such cracking could result in loss of structural integrity and the inability to sustain loading conditions.

We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM and the FAA's response to each comment.

Boeing requested that we revise paragraph (g) of the proposed AD to change it from “frames at stringer 24 and stringer 25, left and right sides,” to state, “frames in Section 43 at stringer 25, left and right sides, and frames in Section 46 at stringer 24, left and right sides.”

We agree with the comment as it adds clarity and makes the AD consistent with the required Accomplishment Instructions of Boeing Alert Service Bulletin 757-53A0099, dated September 18, 2014. We have revised the introductory text to paragraph (g) of this AD accordingly.

Boeing requested that we revise paragraph (g)(1) of the proposed AD from “repeat the inspections at intervals not to exceed 12,000 flight cycles,” to state, “repeat the inspections of frame areas at intervals not to exceed 12,000 flight cycles in areas that have not been repaired as a result of this service bulletin.”

We disagree with the commenter's proposal to make exceptions for areas repaired using the procedures described in the service bulletin, where we assume that the commenter is referring to Boeing Alert Service Bulletin 757-53A0099, dated September 18, 2014. We have not received repair data for cracks detected as a result of the inspections required by this AD, and therefore cannot make a determination that any such repair is terminating action for the required inspections. We will consider requests for alternative methods of compliance (AMOCs) with supporting repair data, which may include termination of the required inspections, or alternate inspection intervals and methods, as required, to address the unsafe condition.

United Airlines and United Parcel Service requested to delay the AD until approved repair information could be included in a revision of Boeing Alert Service Bulletin 757-53A0099, dated September 18, 2014. One commenter noted that its cargo operations often required frame repairs and the lack of approved repair configurations would require unnecessary AMOC requests.

We do not agree to delay issuance of this final rule for a revision to Boeing Alert Service Bulletin 757-53A0099, dated September 18, 2014, to include repair data. Including the repair data will only delay necessary inspections required to address the unsafe condition. The number of positive findings requiring repairs is unknown at this time, and therefore the value of delaying the AD for approved repair data is unknown. It is not possible to address existing repairs which may require an AMOC. The various repair configurations and locations are unknown and therefore cannot be addressed at this time. If the required inspections result in a significant number of repairs, operators and/or the original equipment manufacturer can request a global AMOC for repair data using the procedures in paragraph (i) of this AD.

We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this AD with the changes described previously and minor editorial changes. We have determined that these minor changes:

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

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

We also determined that these changes will not increase the economic burden on any operator or increase the scope of this AD.

We reviewed Boeing Alert Service Bulletin 757-53A0099, dated September 18, 2014. The service information describes procedures for detailed and high frequency eddy current (HFEC) inspections for cracking in the fuselage frame at stringer 24 and stringer 25, left and right sides. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD affects 652 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this AD.

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

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

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

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

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

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

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

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

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

The Railroad Retirement Board (Board) amends part 367 of the Board's regulations, Recovery of Debts Owed to the United States Government by Administrative Offset. Specifically, the Board amends section 367.3(a), Board Responsibilities. Section 367.3(a) states that all nontax debts over 180 days delinquent shall be referred to the Department of the Treasury for administrative offset through the Treasury Offset Program as required by 31 U.S.C. 3716. 31 U.S.C. 3716 was amended by the Digital Accountability and Transparency Act (DATA Act), Public Law 113-101. The DATA Act now requires agencies to refer to the Department of the Treasury valid, delinquent nontax debts for the purpose of administrative offset at 120 days. The amendment to section 367.3(a) of the Board's regulation changes from 180 days to 120 days the debts referred to the Department of the Treasury in compliance with the DATA Act.

A proposed rule was published in the Federal Register on January 21, 2015, and comments were invited (80 FR 2839). No comments were received. The final rule makes no changes from the proposed rule.

The Board, with the concurrence of the Office of Management and Budget, has determined that this is not a significant regulatory action under Executive Order 12866, as amended. Therefore, no regulatory impact analysis is required. There are no changes to the information collections associated with Part 367.

For the reasons set out in the preamble, the Railroad Retirement Board amends title 20, chapter II, subchapter F, part 367 of the Code of Federal Regulations as follows:

I. Overview of Rule II. Background III. Comments on the Interim Final Rule A. “Written Evidence” B. Alternatives to a Title Insurance Policy C. Previously Issued Title Insurance Policy D. Abstract of Title E. Marketability and Exceptions to the Title Insurance Policy F. Standards to be Used in Place of DOJ Standards G. Timing and Timelines H. Other Comments IV. Changes from Interim Final Rule to Final Rule V. Applicability of New Rule VI. Procedural Requirements A. Regulatory Planning and Review (E.O. 12866 and 13563) B. Regulatory Flexibility Act C. Small Business Regulatory Enforcement Fairness Act D. Unfunded Mandates Reform Act E. Takings (E.O. 12630) F. Federalism (E.O. 13132) G. Civil Justice Reform (E.O. 12988) H. Consultation with Indian Tribes (E.O. 13175) I. Paperwork Reduction Act J. National Environmental Policy Act K. Information Quality Act L. Effects on the Energy Supply (E.O. 13211) M. Administrative Procedure Act I. Overview of Rule

This rule replaces the “Standards for the Preparation of Title Evidence in Land Acquisitions by the United States” issued by DOJ (DOJ standards) with a more targeted title evidence standard. Under the new standard, applicants must furnish a deed evidencing that the applicant has ownership, or a written sales contract or written statement from the transferor that the applicant will have ownership. Applicants must also submit either (1) a current title insurance commitment; or (2) the policy of title insurance issued at the time of the applicant's or current owner's acquisition of the interest and an abstract dating from the time the interest was acquired. This rule does not preclude applicants from having title confirmed pursuant to all requirements of DOJ standards (as those standards apply in the land-into-trust context) if the applicant so chooses.

The rule continues the current requirement that title evidence must be submitted and reviewed by the Department of the Interior (Department) before title is transferred. The rule continues to provide that the Secretary has discretion to require the elimination of any liens, encumbrances, or infirmities prior to acceptance in trust. The rule also continues the practice of requiring the elimination of any legal claims, including but not limited to liens, mortgages, and taxes, determined by the Secretary to make title unmarketable, prior to acceptance in trust.

Section 5 of the Indian Reorganization Act (IRA) is the primary authority providing the Secretary of the Interior (Secretary) with discretion to acquire land in trust for individual Indians or Indian tribes. See 25 U.S.C. 465. Congress has also enacted other statutes that authorize the discretionary acquisition of lands for specific tribes. The Department's regulations at 25 CFR part 151 establish the process for discretionary trust acquisitions pursuant to section 465 and other statutory authority. Section 151.13 of the regulations published in 1980 required the applicant to furnish title evidence meeting the DOJ standards if the Secretary determines to approve a fee-to-trust application.

On March 1, 2016, BIA published an interim final rule deleting the requirement for the applicant to furnish title evidence meeting DOJ standards because those standards are not required for acquisitions of land in trust for individual Indians or Indian tribes. See 81 FR 10477. On April 15, 2016, BIA delayed the effective date of the rule to May 16, 2016 to allow BIA time to publish technical revisions. See 81 FR 22183. This rule provides those technical revisions.

The BIA received 13 comments in response to the interim final rule, most asking questions seeking clarification of the regulatory text. Several commenters supported the rule, but requested clarification. Commenters who opposed the rule stated that the current DOJ standards are necessary to protect the public, including adjoining landowners and other third parties, and protect against conflicts of interest, and that DOJ standards are more reliable and less costly.

After careful consideration of the comments and applying its own experience in reviewing fee-to-trust applications and title evidence, BIA has determined that the final rule provides sufficient standards to protect the United States. The purpose of title evidence requirements is to ensure that the Tribe has marketable title to convey to the United States, thereby protecting the United States. See Crest-Dehesa-Granite Hills-Harbison Canyon Subregional Planning Group v. Acting Pacific Regional Director, 61 IBIA 208, 216 (2015). The rule revisions allow for a less costly alternative to providing a title insurance policy under DOJ standards, while still ensuring sufficient evidence of good title. The following are summaries of the substantive points made in these comments, and the Department's responses.

Several commenters requested clarification of what “written evidence” is required by paragraphs (a)(1) and (a)(2) of the interim final rule. In paragraph (a)(1), the interim final rule required “written evidence of the applicant's title or that title will be transferred to the United States on behalf of the applicant to complete the acquisition in trust.” In paragraph (a)(2), the interim final rule required “written evidence of how title was acquired by the applicant or current owner.” Commenters stated that it appeared the same evidence may satisfy both (a)(1) and (a)(2), in the form of the applicant's deed. To clarify, the final rule specifies that the written evidence must be a deed or other conveyance instrument providing evidence of the applicant's title. The final rule also specifies that if the applicant does not yet have title, the written evidence must be: (1) A deed or other conveyance instrument providing evidence of the transferor's title; and (2) a written agreement or affidavit from the transferor demonstrating that title will be transferred to the United States on behalf of the applicant to complete the acquisition in trust.

A few commenters also noted that (a)(1) and (a)(2) appeared to impose redundant requirements. The final rule addresses this comment by deleting (a)(2), because the specified written evidence required by (a)(1) will necessarily also serve as evidence of how the applicant or current owner acquired title.

A commenter requested clarification of paragraph (b)'s requirement for a “current title insurance commitment” to confirm that no title insurance policy needs to be purchased in the name of the U.S. in trust for the applicant. The commenter is correct that no title insurance policy needs to be purchased if the applicant provides a current title insurance commitment. Also, if the applicant or current owner already obtained a title insurance policy when they acquired the land, the applicant need not purchase a new title insurance policy if they provide the previously issued policy and an abstract of title dating from the time the land was acquired by the applicant or current owner to the present. No clarification to the rule was made in response to this comment because the rule already states the alternatives to purchasing a title insurance policy.

Another commenter noted that, because the rule requires only the commitment to issue title insurance rather than an actual title insurance policy, that title companies may stop issuing commitments without a final title policy. For BIA's purposes, the title commitment is sufficient evidence and, in recognition that there is an extra cost imposed for obtaining the actual title insurance policy, the rule requires only the title commitment. Currently, title companies generally will issue a commitment without requiring the purchase of an actual policy; the possibility that title companies may require the purchase of an actual policy in the future does not provide a basis for BIA to require the policy. An insurance policy is not required if the applicant is proceeding with a title commitment, but applicants may choose to purchase a policy if they so desire; the rule does not prevent them from doing so.

A commenter requested clarification of the requirement for “the policy of title insurance issued at the time of the applicant's or current owner's acquisition of the land and an abstract of title dating from the time the land was acquired by the applicant or current owner.” This commenter stated that an existing title insurance policy may not have been issued at the time of the acquisition, and suggested revising the provision to simply state “the policy of title insurance issued to the applicant or current owner.” The final rule incorporates this suggestion and clarifies that the abstract must address the time period beginning when the insurance policy was issued to the applicant or current owner.

One commenter asked whether BIA, and the Office of the Solicitor, will still require a current title commitment, even when the applicant provides the previously issued policy and abstract. Upon the effective date of the rule, the BIA and Office of the Solicitor will require only the title evidence listed in the rule.

A commenter requested clarification as to whether the requirement for an abstract of title is intended to address title going forward rather than backward, and if so, that it would not be a title abstract in the traditional sense because the abstract would reflect only the current owner. The final rule clarifies that the requirement is intended to address title going forward, by adding “to the present.” The commenter is correct that the abstract of title will be straightforward, and may only reflect the current owner, but the abstract will serve the purpose of confirming the current owner's ownership and showing whether any liens, encumbrances, or infirmities have been placed on title prior to acceptance in trust, in lieu of requiring the applicant to purchase a new title commitment.

A commenter requested clarification on what “marketability” means. The commenter also asked how BIA will address reversionary clauses and defeasible title issues and their effect on marketability. The final rule makes no substantive change to the provision allowing BIA to require the elimination of any such liens, encumbrances, or infirmities if BIA determines they make title to the land unmarketable. Likewise, the final rule makes no substantive change to the meaning of “unmarketable.”

A commenter suggested the rule explain that the deed will not be recorded until exceptions to the title insurance policy are satisfied. The final rule does not include this explanation because it is inaccurate. There is no requirement that all exceptions be eliminated. The Department reviews and makes a determination on each exception as to whether it must be eliminated, and does not require the elimination of exceptions that do not affect the title to the land.

A few commenters requested more specifics as to what title standards the Department will apply in lieu of the DOJ standards. For example, one commenter asked whether the Department will still require applicants to use the American Land Title Association (ALTA) U.S. policy form in those cases in which the applicant chooses to obtain title insurance. The BIA has updated the fee-to-trust handbook to ensure it is consistent with this final rule. The revised version of the fee-to-trust handbook specifies that, if the applicant chooses to submit title insurance, it should use the most current version of the ALTA U.S. policy form. A commenter also asked how the Department will determine who is qualified to provide title evidence, in lieu of the DOJ standards. The revised fee-to-trust handbook specifies that the Department will look to the appropriate licensing authority for qualifications. A commenter also asked what type of deed will be required to convey title to the U.S. on behalf of the applicant. The Department will continue the approach it has taken in the past (requiring a warranty deed in nearly all instances), specified in the revised fee-to-trust handbook.

A commenter asked whether the Department will look to State laws for guidance. The Department relies on national standards, as set out in the rule and revised fee-to-trust handbook, rather than State laws, with regard to the Department's decision whether to approve title.

One commenter requested stating that the applicant need not provide title evidence until after the Secretary makes the decision to take the land into trust. The final rule only addresses what title evidence is required, it is not intended to change the Department's process or timing.

One commenter suggested imposing timelines on the Department's issuance of preliminary and final title opinions. The final rule does not incorporate this suggestion because there are too many variables to establish a definitive timeframe for preparation of these documents.

A few commenters suggested edits that were beyond the scope of the interim final rule. One Tribal commenter noted the difficulty in obtaining title insurance policies in California and suggested actions the Department could take to educate title insurance companies. Another commenter suggested adding a requirement to obtain State approval to transfer jurisdiction of land being taken into trust. These comments are outside the scope of this rulemaking.

A commenter also stated that the revision is not appropriate for an interim final rule. The Department disagrees because the rule is a targeted, procedural improvement.

As described above, the final rule includes edits to the interim final rule for clarification. The edits are summarized in the table below:

As the preamble to the interim final rule stated, this rule will apply to all trust applications submitted after the effective date. This rule will also apply to trust applications that are pending and for which the Preliminary Title Opinion has not yet been prepared by the Office of the Solicitor as of the effective date. However, if applicants have already submitted evidence meeting the DOJ standards, they need not re-submit evidence pursuant to this rule. This rule will not apply to trust applications that are pending and for which the Preliminary Title Opinion has already been prepared by the Office of the Solicitor as of the effective date.

BIA has updated its fee-to-trust handbook to incorporate changes required by the new rule. The handbook is available at: http://www.bia.gov/cs/groups/xraca/documents/text/idc1-024504.pdf.

Executive Order 12866 provides that the Office of Information and Regulatory Affairs in the Office of Management and Budget will review all significant rules. The Office of Information and Regulatory Affairs 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.

The Department of the Interior certifies that this document will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). It does not change current funding requirements or regulate small entities.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. It will not result in the expenditure by State, local, or Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year. The rule will not result in a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. Nor will this rule have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of the U.S.-based enterprises to compete with foreign-based enterprises. This rule removes the requirement for title evidence to comply with DOJ standards and replaces this requirement with a more targeted requirement for title evidence; it will not result in additional expenditures by any entity.

This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does 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.

Under the criteria in Executive Order 12630, this rule does not affect individual property rights protected by the Fifth Amendment nor does it involve a compensable “taking.” A takings implication assessment is not required.

Under the criteria in Executive Order 13132, this rule has no 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. This rule removes the requirement for title evidence to comply with DOJ standards and replaces this requirement with a more targeted requirement for title evidence; it does not affect States or the relationship with States in any way.

This rule complies with the requirements of Executive Order 12988. Specifically, this rule has been reviewed to eliminate errors and ambiguity and written to minimize litigation; and is written in clear language and contains clear legal standards.

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments,” Executive Order 13175 (59 FR 22951, November 6, 2000), and 512 DM 2, we have evaluated the potential effects on federally recognized Indian Tribes and Indian trust assets and have determined there is no “substantial direct effect” on Tribes, on the relationship between the Federal Government and Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. The rule will affect Tribes who apply to take land into trust, in that the rule removes unnecessary submissions of documentation. However, the rule does not have a substantial direct effect on Tribes because Tribes can still submit evidence meeting the DOJ title standards should they so choose and allowing the option of submitting a past title insurance policy and an abstract of title is intended to be less burdensome than the existing rule. The Department is committed to meaningful consultation with Tribes on substantive matters that have a substantial direct effect on Tribes, in accordance with E.O. 13175 and the Department of the Interior Policy on Consultation with Indian Tribes.

This information collection for trust land applications is authorized by OMB Control Number 1076-0100, with an expiration of 08/31/16. The elimination of the requirement to comply with DOJ standards is not expected to have a quantifiable effect on the hour burden estimate for the information collection, but BIA will review whether its current estimates are affected by this change at the next renewal.

This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 (NEPA) is not required because the rule is covered by a categorical exclusion. This rule is excluded from the requirement to prepare a detailed statement because it is a regulation of an administrative nature. (For further information, see 43 CFR 46.210(i).) We have also determined that the rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA.

In developing this rule we did not conduct or use a study, experiment, or survey requiring peer review under the Information Quality Act (Pub. L. 106-554).

This rule is not a significant energy action under the definition in Executive Order 13211. A Statement of Energy Effects is not required.

We published an interim final rule with a request for comment without prior notice and comment, as allowed under 5 U.S.C. 553(b)(B). Under section 553(b)(B), we find that prior notice and comment are unnecessary because this is a minor, technical action that eliminates an unnecessary requirement. This rule removes the unnecessary requirement that the title evidence the applicant submits must comply with DOJ standards for title evidence. Delay in publishing this rule would unnecessarily continue imposing the unnecessary requirement on applicants and would therefore be contrary to the public interest. We stated that we would review comments and initiate a proposed rulemaking, revise, or withdraw the rule. Because the comments we received were primarily seeking clarifications, we have chosen to revise the rule with requested clarifications.

For the reasons given in the preamble, the interim rule amending 25 CFR part 151 which was published at 81 FR 10477 on March 1, 2016, is adopted as a final rule with the following change:

The University of Washington, through the Washington Department of Transportation, has requested that the Montlake Bridge bascule span remain in the closed-to-navigation position, and need not open to marine traffic to facilitate timely movement of commencement vehicular traffic.

The Montlake Bridge across the Lake Washington Ship Canal, at mile 5.2, in the closed position provides 30 feet of vertical clearance throughout the navigation channel, and 46 feet of vertical clearance throughout the center 60-feet of the bridge; vertical clearance references to the Mean Water Level of Lake Washington. The normal operating schedule for Montlake Bridge operates in accordance with 33 CFR 117.1051(e).

The deviation period is from 9:30 a.m. to 12:30 p.m. and from 4:30 p.m. to 6:30 p.m. on June 11, 2016; and from 11:45 a.m. to 1:45 p.m. and from 4:15 p.m. to 6:15 p.m. on June 12, 2016. The deviation allows the bascule span of the Montlake Bridge to remain in the closed-to-navigation position for the times and dates herein. Waterway usage on the Lake Washington Ship Canal ranges from commercial tug and barge to small pleasure craft.

Vessels able to pass through the bridge in the closed-to-navigation position may do so at anytime. The bridge will be able to open for emergencies and there is no immediate alternate route for marine vessels to pass. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessels can arrange their transits to minimize any impact caused by the temporary deviation.

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

TriMet Public Transit and Multnomah County have requested that the upper deck of the Steel Bridge and the Burnside Bridge remain in the closed-to-navigation position to accommodate the annual Rose Festival Parade event. The Steel Bridge, mile 12.1, and the Burnside Bridge, mile 12.4, both cross the Willamette River.

The Steel Bridge is a double-deck lift bridge with a lower lift deck and an upper lift deck which operate independent of each other. When both decks are in the down position the bridge provides 26 feet of vertical clearance. When the lower deck is in the up position, the bridge provides 71 feet of vertical clearance. This deviation does not affect the operating schedule of the lower deck which opens on signal. The normal operating schedule for the upper deck of the Steel Bridge operates in accordance with 33 CFR 117.897(c)(3)(ii).

The Burnside Bridge provides a vertical clearance of 64 feet in the closed-to-navigation position. The normal operating schedule for the Burnside Bridge operates in accordance with 33 CFR 117.897(c)(3)(iii). The Steel Bridge and Burnside Bridge clearances are above Columbia River Datum 0.0.

The deviation period is from 7 a.m. to 2 p.m. on June 11, 2016 to accommodate the route of the annual Rose Festival Parade event. The deviation allows the upper deck of the Steel Bridge, mile 12.1, and the Burnside Bridge, mile 12.4, both crossing the Willamette River, to remain in the closed-to-navigation position and need not open for maritime traffic from 7 a.m. to 2 p.m. on June 11, 2016. Waterway usage on this part of the Willamette River includes vessels ranging from commercial tug and barge to small pleasure craft.

Vessels able to pass through the Steel Bridge and Burnside Bridge in the closed positions may do so at any time. The bridges will be able to open for emergencies, and there is no immediate alternate route for vessels to pass. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridges so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.

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

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency finds good cause those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the Coast Guard was not notified of the event until April 19, 2016. After full review of the event details, the Coast Guard determined that action is needed to protect people and property from the safety hazards associated with a fireworks display on the Upper Mississippi River. It would be impracticable to publish a NPRM because the safety zone must be established on June 17, 2016.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. On June 17, 2016, a fireworks display will take place on the Upper Mississippi River between mile 853.2 and mile 854.2 for the 150th Celebration of General Mills. The COTP has determined that potential hazards associated with the fireworks display will be a safety concern for anyone within the area that is designated as the safety zone. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone during the fireworks display.

This rule establishes a safety zone from 10 p.m. until 11 p.m. on June 17, 2016. The safety zone will cover all navigable waters on the Upper Mississippi River between mile 853.2 and mile 854.2. The safety zone is intended to protect personnel, vessels, and the marine environment in these navigable waters during the fireworks display. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

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

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

This temporary final rule establishes a safety zone that will be enforced for a limited time period. During the enforcement period, vessels are prohibited from entering into or remaining within the safety zone unless specifically authorized by the COTP or other designated representative. Based on the location and short duration of the enforcement period, this rule does not pose a significant regulatory impact. Additionally, notice of this safety zone or any changes in the planned schedule will be made via Broadcast Notice to Mariners and Local Notice to Mariners. Deviation from this rule may be requested from the COTP and will be considered on a case-by-case basis.

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

While some owners or operators of vessels intending to transit the safety zone 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 would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting approximately one hour that will prohibit entry between miles 853.2 and 854.2 on the Upper Mississippi River. It is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

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

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

The Coast Guard will enforce the safety zone established in 33 CFR 165.1191, Table 1, Item number 4 on July 4, 2016. Upon commencement of the 30 minute fireworks display, scheduled to begin at 9:30 p.m. on July 4, 2016, the safety zone will encompass the navigable waters surrounding the land-based launch site on the West Jetty of Crescent City Harbor within a radius of 700 feet in approximate position 41°44′41″ N, 124°11′59″ W (NAD 83) for the Fourth of July Fireworks, Crescent City in 33 CFR 165.1191, Table 1, Item number 4. Upon the conclusion of the fireworks display the safety zone shall terminate. This safety zone will be in effect from 9:30 p.m. to 10 p.m. on July 4, 2016.

Under the provisions of 33 CFR 165.1191, unauthorized persons or vessels are prohibited from entering into, transiting through, or anchoring in the safety zone during all applicable effective dates and times, unless authorized to do so by the PATCOM. Additionally, each person who receives notice of a lawful order or direction issued by an official patrol vessel shall obey the order or direction. The PATCOM is empowered to forbid entry into and control the regulated area. The PATCOM shall be designated by the Commander, Coast Guard Sector San Francisco. The PATCOM may, upon request, allow the transit of commercial vessels through regulated areas when it is safe to do so.

This notice of enforcement is issued under authority of 33 CFR 165.1191 and 5 U.S.C. 552 (a). In addition to this notice of enforcement in the Federal Register, the Coast Guard plans to provide the maritime community with notification of the safety zone and its enforcement period via the Local Notice to Mariners.

If the Captain of the Port determines that the regulated area need not be enforced for the full duration stated in this notice, a Broadcast Notice to Mariners may be used to grant general permission to enter the regulated area.

Table of Contents I. Background Information II. Final Action III. Statutory and Executive Orders Review I. Background Information

On October 20, 2015, Oregon made a submittal to address the interstate transport requirements of CAA section 110(a)(2)(D)(i)(I) for multiple NAAQS, including the 2008 Pb and 2010 NO2 NAAQS. On March 11, 2016, the EPA proposed to approve the submittal as meeting the interstate transport requirements of CAA section 110(a)(2)(D)(i)(I) for the 2008 Pb and 2010 NO2 NAAQS (81 FR 12849). An explanation of the CAA requirements, a detailed analysis of the submittal, and the EPA's reasons for approval were provided in the proposal and will not restated here. The public comment period for the proposal ended on April 11, 2016. The EPA received no comments.

The EPA is approving Oregon's October 20, 2015 submittal as meeting the CAA section 110(a)(2)(D)(i)(I) interstate transport requirements for the 2008 Pb and 2010 NO2 NAAQS. The remainder of the submittal, with respect to the 2010 sulfur dioxide and 2012 fine particulate matter NAAQS, will be addressed in separate, future actions.

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

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

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

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

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

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

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

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

• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because this action does not involve technical standards; 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).

In addition, 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 as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. 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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 15, 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:

This Federal Register document, the petition for reconsideration, and the letters granting and denying the petition for reconsideration are available in the docket the EPA established for the OSWRO NESHAP under Docket ID No. EPA-HQ-OAR-2012-0360. The document identification number for the petition for reconsideration is EPA-HQ-OAR-2012-0360-0128. The document identification numbers for the EPA's response letters are EPA-HQ-OAR-2012-0360-0122 and EPA-HQ-OAR-2012-0360-0123.

All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., confidential business information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through http://www.regulations.gov or in hard copy at the EPA Docket Center (EPA/DC), Room 3334, EPA WJC West Building, 1301 Constitution Ave. NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744 and the telephone number for the Air Docket is (202) 566-1742.

This Federal Register document, the petition for reconsideration, and the letters granting and denying the petition can also be found on EPA's Web site at http://www.epa.gov/ttn/atw/offwaste/oswropg.html. The amended OSWRO NESHAP was published in the Federal Register on March 15, 2015, at 80 FR 14248.

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

The EPA has determined that its denial of the petition for reconsideration is nationally applicable for purposes of CAA section 307(b)(1) because the actions directly affect the OSWRO NESHAP, which is a nationally applicable regulation. Thus, any petitions for review of the EPA's decision denying the petitioners' request for reconsideration must be filed in the United States Court of Appeals for the District of Columbia Circuit by July 15, 2016.

On March 18, 2015, the EPA promulgated a final rule amending the OSWRO NESHAP based on the RTR conducted for the OSWRO source category. 80 FR 14248, March 18, 2015. The EPA amended the OSWRO NESHAP to revise provisions related to emissions during periods of startup, shutdown, and malfunction; to add requirements for electronic reporting of performance testing; to add monitoring requirements for pressure relief devices (PRDs); to revise routine maintenance provisions; to clarify provisions for open-ended valves and lines and for some performance test methods and procedures; and to make several minor clarifications and corrections. Subsequent to publishing the final rule, the EPA received a petition for reconsideration submitted jointly by Eastman Chemical Company and the American Chemical Council (dated May 18, 2015). This petition sought reconsideration of two of the amended provisions of the OSWRO NESHAP: (1) The equipment leak provisions for connectors, and (2) the requirement to monitor PRDs on portable containers. The EPA considered the petition and supporting information along with information contained in the OSWRO NESHAP amendment rulemaking docket (Docket ID No. EPA-HQ-OAR-2012-0360) in reaching a decision on the petition. The Agency granted reconsideration of the PRD monitoring requirement in a letter to the petitioners dated February 8, 2016. In separate letters to the petitioners dated May 5, 2016, the Administrator denied reconsideration of the equipment leak provisions for connectors and explained the reasons for the denial in these letters. These letters are available in the OSWRO NESHAP amendment rulemaking docket.

This supplementary information section is organized as follows:

This rule applies to tribal governments that seek eligibility to administer regulatory programs under the Clean Water Act (CWA, or the Act). The table below provides examples of entities that could be affected by this rule or have an interest in it.

If you have questions regarding the effect of this interpretive rule on a particular entity, please consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

Today's interpretive rule streamlines how tribes apply for TAS under CWA section 518 for CWA regulatory programs including the water quality standards program. It eliminates the need for applicant tribes to demonstrate inherent authority to regulate under the Act, thus allowing tribes to implement a delegation of authority by Congress. Specifically, EPA revises its existing interpretation of CWA section 518 to conclude definitively that this provision includes an express delegation of authority by Congress to Indian tribes to administer regulatory programs over their entire reservations, subject to the eligibility requirements in section 518.

EPA conducted consultation and coordination with tribes and states before proposing the reinterpretation in the Federal Register on August 7, 2015. See 80 FR 47430 (August 7, 2015) (“proposed rule,” “EPA's proposal,” “proposed reinterpretation”), available in the docket for this rule. During the 60-day public comment period, EPA provided informational webinars for the public and conducted further consultation and coordination with tribes and states.

EPA received a total of 44 comments from the public on the proposed interpretive rule. A majority (27) of the comments expressed support for the rule, including unanimous support from tribes and tribal organizations that responded. Sections IV and V address issues and questions about the proposal that commenters raised.

Today's rule finalizes the proposal, reflecting EPA's consideration of the comments and other input received. The comments, EPA's responses to the comments, and meeting notes are available in the public docket at http://www.regulations.gov.

The CWA, 33 U.S.C. 1251, et seq., including section 518 (33 U.S.C. 1377).

This rule entails no significant cost. Its only effect will be to reduce the administrative burden for a tribe applying in the future to administer a CWA regulatory program, and to potentially increase the pace at which tribes seek such programs. See the discussion of administrative burden and cost in sections VII and VIII.B.

This interpretive rule, which sets forth EPA's revised interpretation of CWA section 518, is not a final agency action subject to immediate judicial review. This interpretive rule is not determinative of any tribe's eligibility for TAS status. Rather, it notifies prospective applicant Indian tribes and others of EPA's revised interpretation. Today's interpretive rule would be subject to judicial review only in the context of a final action by EPA on a TAS application from an Indian tribe for the purpose of administering a CWA regulatory program based on the revised interpretation.

Congress added CWA section 518 as part of amendments made to the statute in 1987. Section 518(e) authorizes EPA to treat eligible Indian tribes in a similar manner as states for a variety of purposes, including administering each of the principal CWA regulatory programs and receiving grants under several CWA funding authorities. Section 518(e) is commonly known as the “TAS” provision, for treatment in a manner similar to a state.

Section 518(e) establishes eligibility criteria for TAS, including requirements that the tribe have a governing body carrying out substantial governmental duties and powers; that the functions to be exercised by the tribe pertain to the management and protection of water resources within the borders of an Indian reservation; and that the tribe be reasonably expected to be capable of carrying out the functions to be exercised in a manner consistent with the terms and purposes of the Act and applicable regulations. Section 518(e) also requires EPA to promulgate regulations specifying the TAS process for applicant tribes. See section II.B.

Section 518(h) defines “Indian tribe” to mean any Indian tribe, band, group, or community recognized by the Secretary of the Interior and exercising governmental authority over a federal Indian reservation. It also defines “federal Indian reservation” to mean all land within the limits of any reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation.

Pursuant to section 518(e), EPA promulgated several final regulations establishing TAS criteria and procedures for Indian tribes interested in administering programs under the Act. The relevant regulations addressing TAS requirements for the principal CWA regulatory programs are: 1

• 40 CFR 131.8 for section 303(c) water quality standards (WQS). Final rule published December 12, 1991 (56 FR 64876); proposed rule published September 22, 1989 (54 FR 39098). Referred to hereafter as the “1991 WQS TAS rule” or “1991 TAS rule”;

• 40 CFR 131.4(c) for section 401 water quality certification, published in the 1991 WQS TAS rule;

• 40 CFR 123.31-123.34 for section 402 National Pollutant Discharge Elimination System (NPDES) permitting and other provisions, and 40 CFR 501.22-501.25 for the state section 405 sewage sludge management program. Final rule published December 22, 1993 (58 FR 67966); proposed rule published March 10, 1992 (57 FR 8522); and

• 40 CFR 233.60-233.62 for section 404 dredge or fill permitting. Final rule published February 11, 1993 (58 FR 8172); proposed rule published November 29, 1989 (54 FR 49180).

In 1994, EPA amended the above regulations to simplify the TAS process and eliminate unnecessary and duplicative procedural requirements. See 59 FR 64339 (December 14, 1994) (the “Simplification Rule”). For example, the Simplification Rule eliminated the need for a tribe to prequalify for TAS before applying for sections 402, 404 and 405 permitting programs. Instead, the rule provided that a tribe would establish its TAS eligibility at the program approval stage, subject to EPA's notice and comment procedures already established for state program approvals in 40 CFR parts 123 and 233. The rule retained the prequalification requirements (including local notice and comment procedures) for section 303(c) WQS and section 401 water quality certifications. Id.; see also, 40 CFR 131.8(c)(2), (3).2 The TAS regulations for CWA regulatory programs have remained intact since promulgation of the Simplification Rule.

Today's interpretive rule does not address or affect the TAS requirements or review process for tribes to receive grants.3 The receipt of grant funding does not involve any exercise of regulatory authority. Therefore, a determination of TAS eligibility solely for funding purposes does not, under existing regulations, require an analysis or determination regarding an applicant tribe's regulatory authority.

The TAS eligibility criteria in section 518(e) make no reference to any demonstration of an applicant tribe's regulatory authority to obtain TAS. Rather, the relevant part of section 518(e)—which is section 518(e)(2)—requires only that the functions to be exercised by the tribe pertain to the management and protection of reservation water resources. As noted above, section 518(h)(1) also defines Indian reservations to include all reservation land irrespective of who owns the land. EPA nonetheless took a cautious approach when it issued the 1991 WQS TAS rule and subsequent regulations described in section II.B above. The 1991 approach required each tribe seeking TAS for the purpose of administering a CWA regulatory program to demonstrate its inherent authority under principles of federal Indian law, including gathering and analyzing factual information to demonstrate the tribe's inherent authority over the activities of nonmembers of the tribe on nonmember-owned fee lands within a reservation.4

This is a summary of the Commission's Report and Order in PS Docket No. 13-209, FCC 16-48, released on April 25, 2016. The document is available for download at http://fjallfoss.fcc.gov/edocs_public/. The complete text of this document is also available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to [email protected] or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

The Report and Order amends the rules to require digital technologies to comply with Emission Mask H when operated in the 800 MHz National Public Safety Planning Advisory Committee (NPSPAC) band (806-809/851-854 MHz). The Report and Order also amends the rules to require equipment to have analog FM capability when operating on 800 MHz NPSPAC, VHF (150-170 MHz), and UHF (450-470 MHz) public safety mutual aid and interoperability channels. These rule changes will help safeguard public safety licensees in the NPSPAC band from adjacent-channel interference and preserve interoperability in the NPSPAC, VHF and UHF bands. Finally, the Report and Order terminates the existing freeze on equipment authorization announced in the Public Notice, 28 FCC Rcd 12661.

The Final Regulatory Flexibility Analysis required by section 604 of the Regulatory Flexibility Act, 5 U.S.C. 604, is included in Appendix B of the Report and Order.

The actions taken in the Report and Order in PS Docket No. 13-209 have been analyzed with respect to the Paperwork Reduction Act of 1995, Public Law 104-13, and found to impose no new or modified recordkeeping requirements or burdens on the public.

The Commission will send a copy of this Report and Order to Congress and the Government Accountability Office pursuant to the Congressional Review Act (“CRA”), see 5 U.S.C. 801(a)(1)(A).

1. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Notice of Proposed Rulemaking (NPRM). The Commission sought written public comment on the proposals in the NPRM, including comment on the IRFA. The comments received are discussed below. This present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

2. The basic purpose of the Report and Order is to amend the Part 90 technical rules in order to prevent adjacent channel interference and promote interoperable public safety communications. In the Notice of Proposed Rulemaking (NPRM) we proposed to adopt rules that guard against interference to critical public safety communications in the 800 MHz NPSPAC band and enhance public safety system interoperability in the VHF, UHF and 800 MHz bands. Most commenters submit that digital equipment should not be authorized in the NPSPAC band unless it complies with Emission Mask H because digital transmitters increase the potential for adjacent channel interference and reduce frequency reuse in the limited NPSPAC spectrum. Most commenters also believe that public safety radios should have analog FM capability when operating on the mutual aid and interoperability channels.

3. Based on the record, we conclude that the public interest will best be served by adopting the rules proposed in the NPRM, with certain changes that will reduce regulatory burdens on public safety entities and manufacturers. The rule changes adopted in this Report and Order provide certainty to public safety entities, regional planning committees (RPC), equipment manufacturers, and equipment certification laboratories, and will ensure that licensed facilities operate under uniform technical parameters to maintain the extant interference environment in the NPSPAC band and promote interoperability.

4. There were no comments raised that specifically addressed the proposed rules and policies presented in the IRFA. Nonetheless, we considered the potential impact of the rules proposed in the IRFA on small entities and reduced the compliance burden for all small entities in order to reduce the economic impact of the rules enacted herein on such entities.

5. First, our decision to apply the H Mask to digital technology is limited to equipment that operates in the sensitive interference environment of the NPSPAC band where 25 kilohertz channels are spaced only 12.5 kilohertz apart. We recognize that the NPSPAC channels are more susceptible to adjacent channel interference due to the 12.5 kilohertz channel spacing relative to the rest of the 800 MHz band where channels are spaced 25 kilohertz apart. Equipment not conforming to the H Mask would increase the potential for adjacent channel interference, require greater geographic separation to mitigate interference and thus reduce spectrum reuse of limited public safety spectrum. Thus, by amending the emission mask rules applicable to the NPSPAC band, we reduce the economic burden on public safety licensees in having to contend with increased adjacent channel interference and decreased spectrum availability.

6. Second, our decision to require analog FM common modulation capability promotes interoperability on the mutual aid channels and the VHF/UHF interoperability channels. In light of the embedded base of analog FM equipment on the mutual aid and VHF/UHF interoperability channels, we believe that requiring a common modulation scheme is a low-cost measure to ensure that these channels remain available during times of crisis.

7. Third, the record shows that the benefits to public safety users of requiring (1) digital technologies to comply with Emission Mask H when operating in the NPSPAC band and (2) equipment to have analog FM capability when operating on 800 MHz, VHF, and UHF public safety mutual aid and interoperability channels exceed the asserted costs of (1) compliance with Emission Mask H, and (2) providing analog FM capability. Additionally, public safety agencies that wish to use non-H Mask compliant digital emissions for non-interoperable communications may apply for authorizations in the 4.5 MHz of 800 MHz interleaved spectrum.

8. The RFA directs agencies to provide a description of, and, where feasible, an estimate of, the number of small entities that may be affected by the rules adopted herein. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act (SBA). A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).

9. Private Land Mobile Radio Licensees. PLMR systems serve an essential role in a range of industrial, business, land transportation, and public safety activities. These radios are used by companies of all sizes operating in all U.S. business categories, and are often used in support of the licensee's primary (non-telecommunications) business operations. For the purpose of determining whether a licensee of a PLMR system is a small business as defined by the SBA, we use the broad census category, Wireless Telecommunications Carriers (except Satellite).

10. The Wireless Telecommunications Carriers (except satellite) industry comprises establishments engaged in operating and maintaining switching and transmission facilities to provide communications via the airwaves. Establishments in this industry have spectrum licenses and provide services using that spectrum, such as cellular phone services, paging services, wireless Internet access, and wireless video services. The appropriate size standard under SBA rules for the category Wireless Telecommunications Carriers (except satellite) is that a business is small if it has 1,500 or fewer employees. Census data for 2007 show that there were 1,383 such firms that operated for the entire year. Of this total, 1,368 firms had fewer than 1000 employees. Thus, under this category and the associated small business size standard, the Commission estimates that the majority of wireless telecommunications carriers (except satellite) are small.

11. The definition of the Wireless Telecommunications Carriers (except satellite) industry provides that a small entity is any such entity employing no more than 1,500 persons. The Commission does not require PLMR licensees to disclose information about number of employees, so the Commission does not have information that could be used to determine how many PLMR licensees constitute small entities under this definition. We note that PLMR licensees generally use the licensed facilities in support of other business activities, and therefore, it would also be helpful to assess PLMR licensees under the standards applied to the particular industry subsector to which the licensee belongs.

12. As of November 1, 2012, there were 1,185 PLMR licensees operating in the PLMR band between 806-809/851-854 MHz (NPSPAC band) and 686 PLMR licensees operating on the VHF and UHF public safety interoperability channels. We note that any entity engaged in a commercial activity is eligible to hold a PLMR license, and that any revised rules in this context could therefore potentially impact small entities covering a great variety of industries.

13. Small Businesses, Small Organizations, and Small Governmental Jurisdictions. Our action may, over time, affect small entities that are not easily categorized at present. We therefore describe here, at the outset, three comprehensive, statutory small entity size standards that encompass entities that could be directly affected by the amended rules. As of 2009, small businesses represented 99.7% of the 28.2 million businesses in the United States, according to the SBA. Additionally, a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of 2007, there were approximately 1,621,315 small organizations. Finally, the term “small governmental jurisdiction” is defined generally as “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” Census Bureau data for 2007 indicate that there were 89,527 governmental jurisdictions in the United States. We estimate that, of this total, as many as 88,761 entities may qualify as “small governmental jurisdictions.” Thus, we estimate that most governmental jurisdictions are small.

14. RF Equipment Manufacturers. The Census Bureau defines this category as follows: “This industry comprises establishments primarily engaged in manufacturing radio and television broadcast and wireless communications equipment. Examples of products made by these establishments are: Transmitting and receiving antennas, cable television equipment, GPS equipment, pagers, cellular phones, mobile communications equipment, and radio and television studio and broadcasting equipment.” The SBA small business size standard for Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing is all such firms having 750 or fewer employees. According to Census Bureau data for 2007, there were a total of 939 establishments in this category that operated for the entire year. Of this total, 912 had employment of under 500, and an additional 10 had employment of 500 to 999. Thus, under this size standard, the majority of firms can be considered small.

15. The Report and Order adopts two principal rule changes that will affect reporting, recordkeeping and other compliance requirements. The Report and Order retains our 800 MHz NPSPAC emission mask rules and explicitly requires digital emission transmitters to comply with Emission Mask H when operated on 800 MHz NPSPAC channels. The Report and Order also requires mobile and portable transmitters to have analog FM modulation capability on the public safety mutual aid and VHF/UHF interoperability frequencies. Digital emission transmitters have characteristics that differ from analog FM transmitters and, hence, have a greater likelihood of causing adjacent-channel interference. The Commission developed specific emission masks for digital emissions, including Mask H for digital emissions in the 800 MHz NPSPAC band. Industry practice recognizes that (1) digitally-modulated signals must be certified under the H-Mask for use in public safety spectrum and (2) radios intended for use on mutual aid and interoperability channels must be capable of analog FM operation. We expect that large and small manufacturers already comply with these proposed regulations. However, to the extent some manufacturers do not already comply with these regulations and industry standards, we expect that such manufacturers would refrain from marketing their equipment to public safety entities as being in compliance with the Commission's rules and ensure that their equipment performs consistent with these regulations designed to prevent interference and preserve interoperability. The Commission's equipment certification process will serve to ensure that equipment complies with Emission Mask H when operated in the NPSPAC band and that it has FM modulation capability on public safety mutual aid and VHF/UHF interoperability frequencies. Some manufacturers may submit new or amended applications for equipment certification accompanied by the requisite engineering showings that demonstrate compliance with the rules adopted in the Report and Order. See OMB Control No. 3060-0057.

16. The RFA requires an agency to describe any significant alternatives that it has considered in developing its approach, which may include the following four alternatives (among others): “(1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for such small entities.”

17. We have evaluated our rule changes in the context of small business entities and find no alternatives, to the benefit of small entities that would achieve our goals of adjacent channel interference avoidance and facilitating nationwide interoperability. Additionally, the rules we adopt are consistent with industry practice and reflect the embedded base of public safety equipment on these channels. Accordingly, we expect most manufacturers and public safety licensees already comply with our regulations, therefore minimizing any significant economic impact on small entities. We believe that these restrictions on adjacent channel interference and interoperability compliance requirements are the minimum needed, when weighed against the significant benefits to small entities, including public safety entities, that result from the approach we are adopting here. In order to further minimize the economic impact on small entities, the rules require analog FM capability only in subscriber units in order to achieve interoperability.

18. None.

19. The Commission will send a copy of the Report and Order, including this FRFA, in a report to be sent to Congress pursuant to the Congressional Review Act. In addition, the Commission will send a copy of the Report and Order, including this FRFA, to the Chief Counsel for Advocacy of the SBA. A copy of the Report and Order and FRFA (or summaries thereof) is also being published in the Federal Register.

20. Accordingly, it is ordered, pursuant to Sections 1, 2, 4(i), 4(j), 301, 302, 303, 308, 309(j), and 332 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 154(j), 301, 302, 303, 308, 309(j), and 332, that this Report and Order is hereby ADOPTED. Part 90 of the Commission's rules, 47 CFR part 90, is revised as set forth in Appendix A to this Report and Order. These rule revisions will take effect 30 days after the date of publication of the text thereof in the Federal Register.

21. It is further ordered that the equipment authorization freeze announced in the Public Notice, 28 FCC Rcd 12661, shall be terminated on the date the rule revisions as set forth in Appendix A become effective.

22. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Report and Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

23. It is further ordered that the Commission shall send a copy of this Report and Order, to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 90 as follows:

The reader can find regulations governing fishing activity in the Northern Gulf of Maine (NGOM) Scallop Management Area in 50 CFR 648.54 and § 648.62. These regulations authorize vessels issued a valid federal scallop permit to fish in the NGOM Scallop Management Area under specific conditions, including a total allowable catch (TAC) of 67,454 lb (30.6 mt) for the 2016 fishing year, and a State Waters Exemption Program for the state of Maine. NMFS reduced the 2016 NGOM Scallop Management Area TAC from 70,000 lb (31.8 mt) to 67,454 lb (30.6 mt) to account for a 2,546-lb (1,155-kg) over harvest of the 2015 TAC during the 2015 fishing year. Section 648.62(b)(2) requires the NGOM Scallop Management Area to be closed to federally permitted scallop vessels for the remainder of the fishing year once the NMFS Greater Atlantic Regional Administrator determines that the TAC for fishing year 2016 is projected to be harvested. Any vessel that holds a federal NGOM permit (category LAGC B) may continue to fish in the Maine state waters portion of the NGOM Scallop Management Area under the State Waters Exemption Program found in § 648.54 provided they have a valid Maine state scallop permit and fish in state waters only.

Based on trip declarations by federally permitted scallop vessels fishing in the NGOM Scallop Management Area, and analysis of fishing effort, we project that the 2016 TAC will be harvested as of May 13, 2016. Therefore, in accordance with § 648.62(b)(2), the NGOM Scallop Management Area is closed to all federally permitted scallop vessels as of May 13, 2016. No vessel issued a federal scallop permit may fish for, possess, or land scallops in or from the NGOM Scallop Management Area after 0001 local time, May 13, 2016, unless the vessel is fishing exclusively in state waters and is participating in an approved state waters exemption program as specified in § 648.54. Any federally permitted scallop vessel that has declared into the NGOM Scallop Management Area, complied with all trip notification and observer requirements, and crossed the VMS demarcation line on the way to the area before 0001, May 13, 2016, may complete its trip. All limited access scallop vessels fishing on a day-at-sea must exit the NGOM Scallop Management Area before 0001 hr local time, May 13, 2016. This closure is in effect through February 28, 2017.

This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866.

NMFS finds good cause pursuant to 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment because it would be contrary to the public interest and impracticable. The NGOM Scallop Management Area opened for the 2016 fishing year on March 1, 2016. The regulations at § 648.60(b)(2) require this closure to ensure that federally permitted scallop vessels do not harvest more than the allocated TAC for the NGOM Scallop Management Area. The projections of the date on which the NGOM Scallop Management Area TAC will be harvested become apparent only as trips into the area occur on a real-time basis and as activity trends begin to appear. As a result, an accurate projection only can be made very close in time to when the TAC is harvested. In addition, proposing a closure would likely increase activity, triggering an earlier closure than predicted. To allow federally permitted scallop vessels to continue to take trips in the NGOM Scallop Management Area during the period necessary to publish and receive comments on a proposed rule would likely result in vessels over harvesting the 2016 TAC for the NGOM Scallop Management Area. Over harvest from the NGOM Scallop Management Area would result in excessive fishing effort in the area, where effort controls are critical, thereby undermining conservation objectives of the Atlantic Sea Scallop Fishery Management Plan and requiring more restrictive future management measures. Also, the public had prior notice and full opportunity to comment on this closure process when we put these provisions in place. NMFS further finds, pursuant to 5 U.S.C. 553(d)(3), good cause to waive the 30-day delayed effectiveness period for the reasons stated above.

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/management/whiting/pacific_whiting.html and at the Pacific Fishery Management Council's Web site at http://www.pcouncil.org/.

The final environmental impact statement (FEIS) regarding Harvest Specifications and Management Measures for 2015-2016 and Biennial Periods Thereafter is available on the NOAA Fisheries West Coast Region Web site at: www.westcoast.fisheries.noaa.gov/publications/nepa/groundfish/groundfish_nepa_documents.html and copies are available from Donald McIsaac, Executive Director, Pacific Fishery Management Council (Council), 7700 NE Ambassador Place, Portland, OR 97220, phone: 503-820-2280.

This final rule announces the TAC for Pacific whiting, expressed in metric tons (mt). This is the fifth year that the TAC for Pacific whiting has been determined under the terms of the Agreement with Canada on Pacific Hake/Whiting (the Agreement) and the Pacific Whiting Act of 2006 (the Whiting Act), 16 U.S.C. 7001-7010. The Agreement and the Whiting Act establish bilateral bodies to implement the terms of the Agreement, each with various responsibilities, including: The Joint Management Committee (JMC), which is the decision-making body; the Joint Technical Committee (JTC), which conducts the stock assessment; the Scientific Review Group (SRG), which reviews the stock assessment; and the Advisory Panel (AP), which provides stakeholder input to the JMC (The Agreement, Art. II-IV; 16 U.S.C. 7001-7005). The Agreement establishes a default harvest policy (F-40 percent with a 40/10 adjustment) and allocates 73.88 percent of the TAC to the United States and 26.12 percent of the TAC to Canada. The JMC is primarily responsible for developing a TAC recommendation to the Parties (United States and Canada). The Secretary of Commerce, in consultation with the Secretary of State, has the authority to accept or reject this recommendation.

Coastwide Pacific whiting landings averaged 224,376 mt from 1966 to 2015, with a low of 89,930 mt in 1980 and a peak of 363,135 mt in 2005. The coast-wide catch in 2015 was 190,663 mt of a 440,000 mt bilateral TAC. The U.S. harvested 47.4 percent and Canada 31.8 percent of their respective allocations. The overall catch of Pacific whiting in U.S. waters was much less than anticipated. Industry reported that this lower catch was due to several factors including unusual, dispersed distribution of the fish later in the season after the at-sea fleet returned from Alaska, possibly due to anomalously warm ocean conditions. Catches may also have been impacted by reduced global market demand resulting from, among other things, a strong U.S. dollar and other market conditions. The Catcher/Processor (C/P) Coop Program, Mothership Coop Program, and Shore-Based IFQ Program fleets caught 67.9 percent, 38.8 percent, and 46.6 percent of their total quotas, respectively. Tribal fisheries did not land any Pacific whiting in 2015.

The JTC prepared the stock assessment document “Status of Pacific hake (whiting) stock in U.S. and Canadian waters in 2016,” which was completed on March 1, 2016, and presents a model that depends primarily upon an acoustic survey biomass index, catches, and age compositions for information on the scale of the current Pacific whiting stock. The most recent survey was conducted in 2015, and was a result of collaboration between Fisheries and Oceans Canada and NOAA Fisheries. The 2015 coast-wide survey biomass estimate was 2.156 million mt, which is estimated to be the highest on record for the survey. The amount of spawning biomass in 2016 is estimated to be 79 percent of historic average levels, well above the target 40 percent.

As with past estimates, there is a considerable range of uncertainty around the most recent estimates because young cohorts that make up a large portion of the survey biomass have not been observed very long. However, age-composition data from both the aggregated fisheries (1975-2015) and the acoustic survey (1998-2015) indicate an exceptionally strong 2010 cohort (age-5 whiting in 2015) contributing to recent increases in the survey index. Coast-wide catches in recent years have largely depended on the 2010 cohort, accounting for 70 percent of the commercial catch in 2013, 67 percent in 2014, and 67 percent in 2015. Similarly, the 2015 survey age composition was nearly 60 percent age-5 fish from the 2010 cohort. Both survey and fishery data sources provided initial indications that the 2014 cohort (age-1 whiting in 2015) was above average. Current estimates suggest that the 2014 cohort is potentially similar in magnitude to the 2010 cohort, but because it has been observed only once (in 2015 data) the estimate is highly uncertain.

The JTC provided tables showing catch alternatives for 2016. Using the default F-40 percent harvest rate identified in the Agreement (Paragraph 1 of Article III), the coastwide TAC for 2016 would be 804,399 mt. The stock assessment model predicts that the probability of the spawning stock biomass dropping below 40 percent under the default harvest rate catch scenario is 54 percent, and the probability of dropping below 10 percent of unfished biomass in 2016 is less than 1 percent. Spawning biomass in 2017 is likely to be less than in 2016 under any catch level, because the dominant 2010 cohort is projected to lose biomass due to natural mortality at a faster rate than it will increase in biomass due to growth.

The SRG met in Seattle, Washington, on February 23-25, 2016, to review the draft stock assessment document prepared by the JTC. The SRG noted that the 2015 acoustic-trawl survey was successfully completed, and that the 2015 survey biomass was 12 percent higher than the 2013 survey estimate, with approximately 21.4 percent of the estimated biomass in Canadian waters and 78.6 percent in U.S. waters and that as with past assessments, uncertainty in current stock status projections is likely underestimated. The SRG determined that substantive improvements had been made in the biomass estimate. In particular, a geostatistical approach, kriging, has been applied to develop index estimates since 2011, and important refinements were made this year that increased the SRG's confidence in the extrapolated biomass estimates. The SRG noted that according to the stock assessment, projected median catches of 830,124 mt in 2016 and 955,423 mt in 2017 could be achievable without overfishing.

The AP met on March 16-18, 2016, and provided its 2016 TAC recommendation to the JMC on March 18, 2016. At its March 17-18, 2016, meeting, the JMC reviewed the advice of the JTC, the SRG, and the AP, and agreed on a TAC recommendation for transmittal to the Parties. Paragraph 1 of Article III of the Agreement directs the default harvest rate to be used unless scientific evidence demonstrates that a different rate is necessary to sustain the offshore whiting resource.

After consideration of the 2016 stock assessment and other relevant scientific information, the JMC did not use the default harvest rate. Instead, a more conservative approach was agreed upon. There were two primary reasons for choosing a TAC well below the default level of F-40 percent: (1) A desire to minimize mortality of the potentially strong 2014 year class, which is anticipated to be important to the fishery over the next several years, but the scale of which is uncertain, and (2) to extend the harvest available from the 2010 year class. The JMC recommended an unadjusted TAC of 439,995 mt for 2016, which is approximately half of what the TAC would be by using the default harvest rate. This conservative approach was endorsed by the AP. Both the U.S. and Canada caught significantly less than their individual TACs in 2015. Therefore, 15 percent of each Party's individual unadjusted 2015 TACs is added to that Party's TAC for 2016 in accordance with Article II of the Agreement, resulting in a 2016 adjusted coastwide TAC of 497,500 mt.

The recommendation for an unadjusted 2016 United States TAC of 325,068 mt, plus 42,485 mt carryover of uncaught quota from 2015 results in an adjusted United States TAC of 367,553 mt for 2016 (73.88 percent of the coastwide TAC). This recommendation is consistent with the best available science, provisions of the Agreement, and the Whiting Act. The recommendation was transmitted via letter to the Parties on March 18, 2016. NMFS, under delegation of authority from the Secretary of Commerce, approved the adjusted TAC recommendation of 367,553 mt for U.S. fisheries on April 21, 2016.

This final rule establishes the tribal allocation of Pacific whiting for 2016. NMFS issued a proposed rule regarding this allocation on March 10, 2016 (81 FR 12676). This action finalizes the tribal allocation. Since 1996, NMFS has been allocating a portion of the U.S. TAC of Pacific whiting to the tribal fishery using the process described in § 660.50(d)(1). According to § 660.55(b), the tribal allocation is subtracted from the total U.S. Pacific whiting TAC. The tribal Pacific whiting fishery is managed separately from the non-tribal Pacific whiting fishery, and is not governed by limited entry or open access regulations or allocations.

The proposed rule described the tribal allocation as 17.5 percent of the U.S. TAC, and projected a range of potential tribal allocations for 2016 based on a range of U.S. TACs over the last 10 years (plus or minus 25 percent to capture variability in stock abundance). As described in the proposed rule, the resulting range of potential tribal allocations was 17,842 to 71,110 mt.

As described earlier in this preamble, the U.S. TAC for 2016 is 367,553 mt. Applying the approach described in the proposed rule, NMFS is establishing the 2016 tribal allocation of 64,322 mt (17.5 percent of the U.S. TAC) at § 660.50(f)(4) by this final rule. While the total amount of Pacific whiting to which the Tribes are entitled under their treaty right has not yet been determined, and new scientific information or discussions with the relevant parties may impact that decision, the best available scientific information to date suggests that 64,322 mt is within the likely range of potential treaty right amounts.

As with prior tribal Pacific whiting allocations, this final rule is not intended to establish precedent for future Pacific whiting seasons, or for the determination of the total amount of whiting to which the Tribes are entitled under their treaty right. Rather, this rule adopts an interim allocation, pending the determination of the total treaty amount. That amount will be based on further development of scientific information and additional coordination and discussion with and among the coastal tribes and State of Washington.

This final rule establishes the fishery harvest guideline (HG) and allocates it among the three non-tribal sectors of the Pacific whiting fishery. The fishery harvest guideline, sometimes called the non-tribal allocation, was not included in the tribal whiting proposed rule published on March 10, 2016 (81 FR 12676), for two reasons related to timing and process. First, a recommendation on the coastwide TAC for Pacific whiting for 2016, under the terms of the Agreement with Canada, was not available until March 18, 2016. This recommendation for a U.S. TAC was approved by NMFS, under delegation of authority from the Secretary of Commerce, on April 21, 2016. Second, the fishery HG is established following deductions from the U.S. TAC for the tribal allocation, mortality in scientific research activities, and fishing mortality in non-groundfish fisheries. The Council establishes the amounts deducted from the U.S. TAC for scientific research and non-groundfish fisheries on an annual basis at its April meeting, based on estimates of scientific research catch and estimated bycatch mortality in non-groundfish fisheries. For 2016, the Council recommended and NMFS approves a scientific research and bycatch set-aside of 1,500 mt. These amounts are not set until the TAC is available. The fishery HG is therefore being finalized with this rule. The 2016 HG, sometimes referred to as the non-tribal allocation, for Pacific whiting is 301,731 mt. This amount was determined by deducting from the total U.S. TAC of 367,553 mt, the 64,322 mt tribal allocation, along with 1,500 mt for scientific research catch and fishing mortality in non-groundfish fisheries.

Regulations at § 660.55(i)(2) allocate the fishery HG among the non-tribal C/P Coop Program, Mothership Coop Program, and Shorebased IFQ Program sectors of the Pacific whiting fishery. The C/P Coop Program is allocated 34 percent (102,589 mt for 2016), the Mothership Coop Program is allocated 24 percent (72,415 mt for 2016), and the Shorebased IFQ Program is allocated 42 percent (126,727 mt for 2016). The fishery south of 42° N. lat. may not take more than 6,336 mt (5 percent of the Shorebased IFQ Program allocation) prior to May 15, the start of the primary Pacific whiting season north of 42° N. lat.

The 2016 allocations of canary rockfish, darkblotched rockfish, Pacific ocean perch and widow rockfish to the Pacific whiting fishery were published in a final rule on March 10, 2015 (80 FR 12567). The allocations to the Pacific whiting fishery for these species are described in the footnotes to Table 2.b to part 660, subpart C and are not changed via this rulemaking.

On March 10, 2016, NMFS issued a proposed rule for the allocation and management of the 2016 tribal Pacific whiting fishery. The comment period on the proposed rule closed on April 11, 2016. No comment letters were received.

The Annual Specifications and Management Measures for the 2016 Tribal and non-Tribal Fisheries for Pacific Whiting are issued under the authority of the Magnuson-Stevens Act, and the Pacific Whiting Act of 2006, and are in accordance with 50 CFR part 660, subparts C through G, the regulations implementing the FMP. NMFS has determined that this rule is consistent with the national standards of the Magnuson-Stevens Act and other applicable laws.

NMFS has determined that the Pacific whiting fishery, both tribal and non-tribal, is consistent, to the maximum extent practicable, with approved coastal zone management programs for the States of Washington and Oregon. NMFS sent letters to the State of Washington and the State of Oregon describing its determination of consistency dated February 5, 2016. Both the State of Oregon and the State of Washington responded indicating agreement with the determination.

Pursuant to 5 U.S.C. 553(b)(B), the NMFS Assistant Administrator finds good cause to waive prior public notice and comment and delay in effectiveness for those provisions in this final rule that were not included in 80 FR 12676, e.g., the U.S. TAC, as delaying this rule would be impracticable and contrary to the public interest. The annual harvest specifications for Pacific whiting must be implemented by the start of the primary Pacific whiting season, which begins on May 15, 2016, or the primary Pacific whiting season will effectively remain closed.

Every year, NMFS conducts a Pacific whiting stock assessment in which U.S. and Canadian scientists cooperate. The 2016 stock assessment for Pacific whiting was prepared in early 2016, and included updated total catch, length and age data from the U.S. and Canadian fisheries from 2015, and biomass indices from the 2015 Joint U.S.-Canadian acoustic/midwater trawl surveys. Because of this late availability of the most recent data for the assessment, and the need for time to conduct the treaty process for determining the TAC using the most recent assessment, it would not be possible to allow for notice and comment before the start of the primary Pacific whiting season on May 15.

A delay in implementing the Pacific whiting harvest specifications to allow for notice and comment would be contrary to the public interest because it would require either a shorter primary whiting season or development of a TAC without the most recent data. A shorter season could prevent the tribal and non-tribal fisheries from attaining their 2016 allocations, which would result in unnecessary short-term adverse economic effects for the Pacific whiting fishing vessels and the associated fishing communities. A TAC determined without the most recent data could fail to account for significant fluctuations in the biomass of this relatively short-lived species. To prevent these adverse effects and to allow the Pacific whiting season to commence, it is in the best interest of the public to waive prior notice and comment.

In addition, pursuant to 5 U.S.C. 553(d)(3), the NMFS Assistant Administrator finds good cause to waive the 30-day delay in effectiveness. Waiving the 30-day delay in effectiveness will not have a negative impact on any entities, as there are no new compliance requirements or other burdens placed on the fishing community with this rule. Failure to make this final rule effective at the start of the fishing year will undermine the intent of the rule, which is to promote the optimal utilization and conservation of Pacific whiting. Making this rule effective immediately would also serve the best interests of the public because it will allow for the longest possible Pacific whiting fishing season and therefore the best possible economic outcome for those whose livelihoods depend on this fishery. Because the 30-day delay in effectiveness would potentially cause significant financial harm without providing any corresponding benefits, this final rule is effective upon publication in the Federal Register.

The preamble to the proposed rule and this final rule serve as the small entity compliance guide required by Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996. This action does not require any additional compliance from small entities that is not described in the preamble. Copies of this final rule are available from NMFS at the following Web site: http://www.westcoast.fisheries.noaa.gov/fisheries/management/whiting/pacific_whiting.html.

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

When an agency proposes regulations, the Regulatory Flexibility Act (RFA) requires the agency to prepare and make available for public comment an Initial Regulatory Flexibility Analysis (IRFA) document that describes the impact on small businesses, non-profit enterprises, local governments, and other small entities. The IRFA is to aid the agency in considering all reasonable regulatory alternatives that would minimize the economic impact on affected small entities. After the public comment period, the agency prepares a Final Regulatory Flexibility Analysis (FRFA) that takes into consideration any new information and public comments. This FRFA incorporates the IRFA and a summary of the analyses completed to support the action.

NMFS published a proposed rule on March 10, 2016 (81 FR 12676) for the allocation of the 2016 tribal Pacific whiting fishery. The comment period on the proposed rule closed on April 11, 2016, and no comments were received on the proposed rule, the IRFA, or the economic impacts of this action generally. An IRFA was prepared and summarized in the Classification section of the preamble to the proposed rule. The description of this action, its purpose, and its legal basis are described in the preamble to the proposed rule and are not repeated here. The FRFA describes the impacts on small entities, which are defined in the IRFA for this action and not repeated here. Analytical requirements for the FRFA are described in Regulatory Flexibility Act, section 604(a)(1) through (5), and summarized below. The FRFA must contain: (1) A succinct statement of the need for, and objectives of, the rule; (2) A summary of the significant issues raised by the public comments in response to the initial regulatory flexibility analysis, a summary of the assessment of the agency of such issues, and a statement of any changes made in the proposed rule as a result of such comments; (3) A description and an estimate of the number of small entities to which the rule will apply, or an explanation of why no such estimate is available; (4) A description of the projected reporting, recordkeeping and other compliance requirements of the rule, including an estimate of the classes of small entities which will be subject to the requirement and the type of professional skills necessary for preparation of the report or record; and (5) A description of the steps the agency has taken to minimize the significant economic impact on small entities consistent with the stated objectives of applicable statutes, including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other significant alternatives to the rule considered by the agency which affect the impact on small entities was rejected.

This final rule establishes the initial 2016 Pacific whiting allocations for the tribal fishery, the fishery HG, the allocations for the non-tribal sectors (C/P, mothership, and shoreside), and the amount of Pacific whiting deducted from the TAC for scientific research and fishing mortality in non-groundfish fisheries. The amount of whiting allocated to these sectors is based on the U.S. TAC. From the U.S. TAC, small amounts of whiting that account for research catch and for bycatch in other fisheries are deducted. The amount of the tribal allocation is also deducted directly from the TAC. After accounting for these deductions, the remainder is the commercial harvest guideline. This guideline is then allocated among the other three sectors as follows: 34 percent for the C/P Coop Program; 24 percent for the MS Coop Program; and 42 percent for the Shorebased IFQ Program.

There are four tribes that can participate in the tribal whiting fishery: The Hoh, Makah, Quileute, and Quinault. The current tribal fleet is composed of 5 trawlers but in recent years, there have been fewer vessels actually fishing. Based on groundfish ex-vessel revenues and on tribal enrollments (the population size of each tribe), the four tribes and their fleets are considered “small” entities. We expect one tribal entity, the Makah Tribe, to fish in 2016.

This rule would also impact vessels in the non-tribal fishery that fish for Pacific whiting. Currently, there are three non-tribal sectors in the Pacific whiting fishery: Shorebased IFQ Program—Trawl Fishery; Mothership Coop Program—Whiting At-sea Trawl Fishery; and C/P Coop Program—Whiting At-sea Trawl Fishery.

Currently, the Shorebased IFQ Program is composed of 172 Quota Share permits/accounts, 152 vessel accounts, and 44 first receivers. The Mothership fishery is currently composed of a single coop, with six mothership processor permits, and 34 Mothership/Catcher-Vessel endorsed permits, with three permits each having two catch history assignments. The C/P Program is composed of 10 C/P permits owned by three companies that have formed a single coop. These regulations directly affect IFQ Quota shareholders whose vessel accounts receive Quota Pounds (QP), holders of mothership catcher-vessel-endorsed permits who determine how many co-ops will participate in the fishery and how much fish each co-op is to receive, and the C/P Coop which is made up of three companies that own the catcher-processor permits.

As part of the permit application processes for the non-tribal fisheries, based on a review of the SBA size criteria, applicants are asked if they consider themselves a “small” business, and they are asked to provide detailed ownership information. Although there are three non-tribal sectors, many companies participate in two sectors and some participate in all three sectors. All of the 34 mothership catch history assignments are associated with a single mothership co-op and all ten of the C/P permits are associated with a co-op. These co-ops are considered large entities from several perspectives; they have participants that are large entities, whiting co-op revenues exceed or have exceeded $20.5 million, or co-op members are connected to American Fishing Act permits or co-ops where the NMFS Alaska Region has determined they are all large entities (79 FR 54597; September 12, 2014). After accounting for cross participation, multiple Quota Share account holders, and affiliation through ownership, NMFS estimates that there are 103 non-tribal entities directly affected by these regulations, 89 of which are considered “small” businesses.

In total in 2015, non-tribal sectors harvested 52 percent of the final non-tribal allocation of 296,685 mt. The revised Pacific whiting allocations for 2015 were: Tribal 26,888 mt, C/P Coop 100,873 mt; Mothership Coop 71,204 mt; and Shorebased IFQ Program 124,607.45 mt. Sector allocations in 2016 are higher than sector catches in 2015, and the initial 2016 allocations to these non-tribal sectors are thirteen percent higher than their 2015 initial allocations. NMFS concludes that this rule will be beneficial to both large and small entities.

For the years 2011 to 2015, the total whiting fishery (tribal and non-tribal) averaged harvests of approximately 205,000 mt annually, worth an average estimated $52 million in ex-vessel revenues. As the U.S. whiting TAC has been highly variable during this time, so have harvests. In the past five years, harvests have ranged from 151,000 mt (2015) to 264,000 mt (2014). Ex-vessel revenues have also varied. Annual ex-vessel revenues have ranged from $25 million (2015) to $65 million (2013 and 2014). Revenues are estimated for the mothership and catcher/processor harvest using the average annual shoreside ex-vessel price. Total whiting harvest in 2015 was approximately 151,000 mt, worth $25 million, at a shoreside ex-vessel price of $167 per mt. Ex-vessel revenues in 2014 were over $64 million with a harvest of 264,000 mt and an average shoreside ex-vessel price of $240 per mt. The prices for whiting are largely determined by the world market for groundfish, because most of the whiting harvested is exported. Poor world market conditions led to a decrease in prices in 2015. A confluence of biological factors precluded the tribal fishery in 2015, and resulted in a much lower harvest percentage of the annual commercial TAC than in prior years. In 2015 NMFS reapportioned 30,000 mt of the original 56,888 mt tribal allocation. This reapportionment was based on conversations with the tribes and the best information available at the time, which indicated that this amount would not limit tribal harvest opportunities for the remainder of the year.

NMFS believes this rule will not adversely affect small entities. There are no significant alternatives to the action in this final rule that accomplish the stated objectives of applicable statutes and the treaties with the affected tribes that minimize any of the significant economic impact of the final rule on small entities.

The RFA can be found at http://www.archives.gov/federal-register/laws/regulatory-flexibility/. The NMFS Economic Guidelines that describe the RFA and EO 12866 can be found at http://www.nmfs.noaa.gov/sfa/domes_fish/EconomicGuidelines.pdf.

There are no reporting or recordkeeping requirements associated with this final rule. No Federal rules have been identified that duplicate, overlap, or conflict with this action.

NMFS issued Biological Opinions under the Endangered Species Act (ESA) on August 10, 1990, November 26, 1991, August 28, 1992, September 27, 1993, May 14, 1996, and December 15, 1999, pertaining to the effects of the Groundfish FMP fisheries on Chinook salmon (Puget Sound, Snake River spring/summer, Snake River fall, upper Columbia River spring, lower Columbia River, upper Willamette River, Sacramento River winter, Central Valley spring, California coastal), coho salmon (Central California coastal, southern Oregon/northern California coastal), chum salmon (Hood Canal summer, Columbia River), sockeye salmon (Snake River, Ozette Lake), and steelhead (upper, middle and lower Columbia River, Snake River Basin, upper Willamette River, central California coast, California Central Valley, south/central California, northern California, southern California). These biological opinions have concluded that implementation of the FMP is not expected to jeopardize the continued existence of any endangered or threatened species under the jurisdiction of NMFS, or result in the destruction or adverse modification of critical habitat.

NMFS issued a Supplemental Biological Opinion on March 11, 2006, concluding that neither the higher observed bycatch of Chinook in the 2005 whiting fishery nor new data regarding salmon bycatch in the groundfish bottom trawl fishery required a reconsideration of its prior “no jeopardy” conclusion. NMFS also reaffirmed its prior determination that implementation of the FMP is not likely to jeopardize the continued existence of any of the affected Evolutionarily Significant Units (ESUs). Lower Columbia River coho (70 FR 37160, June 28, 2005) and Oregon Coastal coho (73 FR 7816, February 11, 2008) were relisted as threatened under the ESA. The 1999 biological opinion concluded that the bycatch of salmonids in the Pacific whiting fishery were almost entirely Chinook salmon, with little or no bycatch of coho, chum, sockeye, and steelhead.

NMFS has reinitiated section 7 consultation on the Pacific Coast Groundfish FMP with respect to its effects on listed salmonids. In the event the consultation identifies either reasonable and prudent alternatives to address jeopardy concerns, or reasonable and prudent measures to minimize incidental take, NMFS would coordinate with the Council to put additional alternatives or measures into place, as required. After reviewing the available information, NMFS has concluded that, consistent with sections 7(a)(2) and 7(d) of the ESA, this action will not jeopardize any listed salmonid species, would not adversely modify any designated critical habitat, and will not result in any irreversible or irretrievable commitment of resources that would have the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures.

On December 7, 2012, NMFS completed a biological opinion concluding that the groundfish fishery is not likely to jeopardize non-salmonid marine species, including listed eulachon, the southern distinct population segment (DPS) of green sturgeon, humpback whales, the eastern DPS of Steller sea lions, and leatherback sea turtles. The opinion also concluded that the fishery is not likely to adversely modify critical habitat for green sturgeon and leatherback sea turtles. An analysis included in the same document as the opinion concludes that the fishery is not likely to adversely affect green sea turtles, olive ridley sea turtles, loggerhead sea turtles, sei whales, North Pacific right whales, blue whales, fin whales, sperm whales, Southern Resident killer whales, Guadalupe fur seals, or the critical habitat for Steller sea lions. Since that biological opinion, the eastern DPS of Steller sea lions was delisted on November 4, 2013 (78 FR 66140); however, this delisting did not change the designation of the codified critical habitat for the eastern DPS of Steller sea lions. On January 21, 2013, NMFS evaluated the fishery's effects on eulachon to consider whether the 2012 opinion should be reconsidered in light of new information from the 2011 fishery and the proposed chafing gear modifications. NMFS determined that information about bycatch of eulachon in 2011 and chafing gear regulations did not change the effects that were analyzed in the December 7, 2012, biological opinion, or provide any other basis to reinitiate consultation. At the Pacific Fishery Management Council's June 2015 meeting, new estimates of eulachon take from fishing activity under the FMP indicated that the incidental take threshold in the 2012 biological opinion was exceeded again in 2013. The increased bycatch may be due to increased eulachon abundance. In light of the new fishery and abundance information, NMFS has reinitiated consultation on eulachon. In the event the consultation identifies either reasonable and prudent alternatives to address jeopardy concerns, or reasonable and prudent measures to minimize incidental take, NMFS would coordinate with the Council to put additional alternatives or measures into place, as required. After reviewing the available information, NMFS concluded that, consistent with sections 7(a)(2) and 7(d) of the ESA, this action will not jeopardize any listed species, would not adversely modify any designated critical habitat, and will not result in any irreversible or irretrievable commitment of resources that would have the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures.

On November 21, 2012, the U.S. Fish and Wildlife Service (FWS) issued a biological opinion concluding that the groundfish fishery will not jeopardize the continued existence of the short-tailed albatross. The FWS also concurred that the fishery is not likely to adversely affect the marbled murrelet, California least tern, southern sea otter, bull trout, nor bull trout critical habitat. The 2012-2013 two-year average of short-tailed albatross take in the groundfish fishery, using expanded annual estimates of black-footed albatross as a proxy, ranged from 1.35 to 2.0 for the lower short-tailed albatross population estimate to 1.45 to 2.15 for the higher population estimates, which exceeded the 2 per 2-year period identified in the incidental take statement in the biological opinion. This led NMFS to reinitiate ESA Section 7 consultation on take of this species in the Pacific Coast Groundfish Fishery. Take of short-tailed albatross has not been observed in the whiting fishery, which is a midwater trawl fishery. After reviewing the available information, NMFS has concluded that, consistent with sections 7(a)(2) and 7(d) of the ESA, this action will not jeopardize listed short-tailed albatross, would not adversely modify any designated critical habitat, and will not result in any irreversible or irretrievable commitment of resources that would have the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures. In the event the consultation identifies either reasonable and prudent alternatives to address jeopardy concerns, or reasonable and prudent measures to minimize incidental take, NMFS would coordinate with the Council to put additional alternatives or measures into place, as required.

In accordance with the National Environmental Policy Act (NEPA), NMFS prepared a final environmental impact statement (FEIS) regarding Harvest Specifications and Management Measures for 2015-2016 and Biennial Periods Thereafter in the Pacific Coast Groundfish Fishery. In that FEIS, the effects of the Pacific whiting fishery were considered using a range of potential harvest levels, the highest of which considered was 408,260 mt, above the harvest level set in this rule.

Pursuant to Executive Order 13175, this final rule was developed after meaningful collaboration with tribal officials from the area covered by the FMP. Consistent with the Magnuson-Stevens Act at 16 U.S.C. 1852(b)(5), one of the voting members of the Pacific Council is a representative of an Indian tribe with federally recognized fishing rights from the area of the Council's jurisdiction. In addition, NMFS has coordinated specifically with the tribes interested in the whiting fishery regarding the issues addressed by this final rule.

For the reasons set out in the preamble, 50 CFR part 660 is amended as follows:

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

NMFS prohibited directed fishing for species that comprise the deep-water species fishery by vessels using trawl gear in the GOA, effective 1200 hours, A.l.t., April 30, 2016 (May 4, 2016, 81 FR 26745) under § 679.21(d)(6)(i). That action was necessary because the second seasonal apportionment of the Pacific halibut bycatch allowance specified for the deep-water species fishery in the GOA was reached. The species and species groups that comprise the deep-water species fishery include sablefish, rockfish, deep-water flatfish, rex sole, and arrowtooth flounder.

Regulations at § 679.21(d)(4)(iii)(D) require NMFS to combine management of the available trawl halibut PSC limits in the second season (April 1 through July 1) deep-water and shallow-water species fishery categories for use in either fishery from May 15 through June 30 of each year. The combined second seasonal apportionment of Pacific halibut PSC is 810 mt. This includes the deep-water and shallow water Pacific halibut PSC limits carried forward from the first seasonal apportionments (January 20 through April 1). The deep-water and shallow-water Pacific halibut PSC apportionments were established by the final 2016 and 2017 harvest specifications for groundfish of the GOA (81 FR 14740, March 18, 2016).

As of May 10, 2016, NMFS has determined that there is approximately 135 metric tons of the trawl Pacific halibut PSC limit remaining in the deep-water fishery and shallow-water fishery seasonal apportionments. Therefore, in accordance with § 679.25(a)(1)(i), (a)(2)(i)(C), and (a)(2)(iii)(D), and to fully utilize the 2016 groundfish total allowable catch available in the deep-water species fishery category NMFS is terminating the previous closure and is reopening directed fishing for species comprising the deep-water fishery category in the GOA. The Administrator, Alaska Region (Regional Administrator) considered the following factors in reaching this decision: (1) The current harvest of Pacific halibut PSC in the deep-water species trawl fishery the of the GOA and, (2) the harvest capacity and stated intent on future harvesting patterns of vessels in participating in this fishery.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the opening of directed fishing for species comprising the deep-water species fishery category in the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of May 10, 2016.

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

Without this inseason adjustment, NMFS could not allow the trawl deep-water species fishery in the GOA to be harvested in an expedient manner and in accordance with the regulatory schedule. Under § 679.25(c)(2), interested persons are invited to submit written comments on this action to the above address until May 31, 2016.

This action is required by § 679.21 and § 679.25 and is exempt from review under Executive Order 12866.