The FAA published a final rule in the Federal Register (84 FR 33845; July 16, 2019) for Docket No. FAA-2018-0984 expanding the R-3803 restricted area complex in central Louisiana by establishing four new restricted areas, R-3803C, R-3803D, R-3803E, and R-3803F, and making minor technical amendments to R-3803A and R-3803B; Fort Polk, LA. Subsequent to publication, the FAA identified a typographical error for the date listed in the effective date; the correct effective date is September 12, 2019. This action corrects that error.

Accordingly, pursuant to the authority delegated to me, Expansion of R-3803 Restricted Area Complex; Fort Polk, LA, published in the Federal Register of July 16, 2019 (84 FR 33845), FR Doc. 2019-15119, is corrected as follows:

On page 33845, in the second column, line 28, remove the text “September 13, 2019” and add in its place “September 12, 2019.”

The Railway Labor Act (RLA or Act), 45 U.S.C. 151, et seq. establishes the NMB whose functions, among others, are to administer certain provisions of the RLA with respect to investigating disputes as to the representative of a craft or class. In accordance with its authority under 45 U.S.C. 152, Ninth, the Board has considered changes to its rules to better facilitate its statutory mission to investigate representation disputes “among a carrier's employees as to who are the representatives of such employees.”

Under Section 2, Ninth of the RLA, it is the duty of the NMB to investigate representation disputes “among a carrier's employees as to who are the representatives of such employees . . . and to certify to both parties, in writing . . . the name or names of the individuals or organizations that have been designated and authorized to represent the employees involved in the dispute, and certify the same to the carrier.” 45 U.S.C. 152, Ninth. The RLA also authorizes the NMB to hold a secret ballot election or employ “any other appropriate method” to ascertain the identity of duly designated employee representatives. Id.

Unlike the National Labor Relations Act (NLRA), the RLA has no statutory provision for decertification of a bargaining representative. The Supreme Court, however, has held that, under Section 2, Fourth, 45 U.S.C. 152, Fourth, employees of the craft or class “have the right to determine who shall be the representative of the group or, indeed, whether they shall have any representation at all.” Bhd. of Ry., Airline & S.S. Clerks v. Ass'n for the Benefit of Non-Contract Emps., 380 U.S. 650, 670 (1965) ( ABNE ). In ABNE, the Court further noted that the legislative history of the RLA supports the view that employees have the option of rejecting collective representation. Id. at 669 (citing Hearings on H.R. 7650, House Committee on Interstate and Foreign Commerce, 73d Cong., 2d Sess., 34-35 (1934)). The 1934 House Report on the 1934 amendments to the RLA states with regard to Section 2, Ninth, “[i]t provides that employees shall be free to join any labor union of their choice and likewise be free to refrain from joining any union if that be their desire.” H.R. Rep. 73 No. 1944 at 2. In Int'l Bhd. of Teamsters v. Bhd. of Ry., Airline & S.S. Clerks, 402 F.2d 196, 202 (1968) ( BRAC ), the United States Court of Appeals for the District of Columbia (D.C. Circuit), stated that “it is inconceivable that the right to reject collective representation vanishes entirely if the employees of a unit once choose collective representation. On its face that is a most unlikely rule, especially taking into account the inevitability of substantial turnover of personnel within the unit.”

Nonetheless, prior to 1983, the Board would dismiss without an election an application filed pursuant to Section 2, Ninth if the NMB determined that the applicant did not “intend to represent” the craft or class in collective bargaining under the Act. In Atchison, Topeka & Santa Fe Ry. Co., 8 NMB 66 (1980), the NMB dismissed the application filed by J.D. Blankenship because the authorization cards did not authorize him to act as the representative of the craft or class for purposes of representation under the RLA, but instead authorized him to decertify the incumbent union. The Board stated that “such cards are not valid for purposes of Section 2, Ninth, to provide a showing of interest.” Id. at 70. In Atchison, Topeka & Santa Fe Ry. Co., the Board dismissed an application supported by cards authorizing Laurence G. Russell to represent the craft or class in collective bargaining under the RLA when the NMB became aware that Mr. Russell intended to negotiate an agreement to terminate the existing collective-bargaining agreement and “thereafter refrain from engaging in further representation of employees.” 8 NMB 469, 472 (1981). Even if an individual seeking to decertify succeeded in winning the election and attempted to disclaim representation, the Board would refuse to process the disclaimer if it was filed too close in time to the certification. In that circumstance, the Board would consider the disclaimer as “clear and compelling evidence” that the prior election was not a true representation dispute, was in fact “designed to frustrate the purposes of the Act, and would void the prior election restoring the certification of the incumbent union. See Mfrs. Ry. Co., 7 NMB 451 (1980).

The Board's position and refusal to act was soundly rejected as a breach of “its clear statutory mandate” in the Fifth Circuit's decision in Russell v. NMB, 714 F.2d 1332 (1983) ( Russell ), finding that “employees have the clear right under the Act to opt for nonrepresentation.” In Russell, the Court held that employees have complete independence under the Act to select or reject a collective bargaining representative, and the NMB could no longer refuse to process a representation application after it determined the applicant intended to terminate collective representation if certified. Since Russell, however, employees who no longer wish to be represented must still follow an unnecessarily complex procedure to obtain an election.

Under its current procedures, the NMB allows indirect rather than direct decertification. The Board does not allow an employee or a group of employees of a craft or class to apply for an election to vote for their current representative or for no union. Employees who wish to become unrepresented must follow a more convoluted path to an election because of the Board's requirement of the “straw man.” This straw man requirement means that if a craft or class of employees want to decertify, they must find a person willing to put their name up, e.g., “John Smith,” and then explain to at least fifty percent of the workforce that John Smith does not want to represent them, but if they want to decertify they have to sign a card authorizing him to represent them. Thus, in order to become unrepresented, employees are required to first sign an authorization card to have a straw man step in to represent them. In the resulting election, the ballot options will include the names of the current representative; John Smith, the straw man applicant; “no union;” and an option to write in the name of another representative. To decertify, employees have to vote for John Smith, the straw man, with the understanding that if certified, he will disclaim representation, or vote for no representation. 1 Although voters selecting the straw man and the “no union” option may both desire nonrepresentation, their votes are not aggregated.

On January 31, 2019, the NMB published a Notice of Proposed Rulemaking (NPRM) in the Federal Register inviting public comment for 60 days on a proposal to amend its RLA rules to provide a straightforward procedure for decertification of representatives. 84 FR 612. Under the Board's proposed procedure employees may submit authorization cards to decertify their current representative. The wording on the card must be unambiguous and clearly state the intent to no longer be represented by the current union. The showing of interest requirement will be the same showing of interest required for a certification election—at least 50 percent of the craft or class.

The Board further proposed eliminating the straw man representation choice from the ballot in decertification elections. Once it is determined that the showing of interest is valid and that at least 50 percent of the craft or class no longer wish to be represented by their current representative, the Board will authorize an election with the incumbent and the no representation option, along with a write-in option, appearing on the ballot. The applicant's name will not appear on the ballot since the representation dispute is whether the employees in the craft or class want to continue to be represented by the incumbent union. The Board's existing run-off rules will continue to apply.

In the NPRM, the Board noted that, while employees have the ability to decertify a representative under the RLA, the current straw man process is unnecessarily complex and convoluted. There is no statutory basis for the additional requirement of a straw man where employees seek to become unrepresented. The NMB noted the legislative history and court precedent that, under the RLA, employees have complete independence to be free to reject representation, as they are free to join any labor organization of their own choosing. By failing to have in place a straight-forward process for decertification of a representative, the Board is maintaining an unjustifiable hurdle for employees who no longer wish to be represented and failing to fulfill the statutory purpose of “freedom of association among employees.” 45 U.S.C. 151a(2).

In the NPRM, the Board also stated its belief that successful decertification, like certification, is a challenging and significant undertaking by employees with a substantial impact on the workplace for both employees and their employer. In the Board's view, changes in the employee-employer relationship that occur when employees become represented, change representative, or become unrepresented require similar treatment. Accordingly, the Board proposed extending the two year time limit on applications in Section 1206.4 to decertification as well as certifications. The other time limits on applications set forth in Section 1206.4 will remain unchanged.

Subsequently, on March 1, 2019, the NMB published a Notice of Meeting in the Federal Register inviting interested parties to attend an open public hearing with the Board to share their views on the proposed rule changes regarding the proposed decertification procedure. 84 FR 6989.

In response to the NPRM, the NMB received 32 submissions during the official comment period from a variety of individuals, employees, trade associations, labor unions, Members of Congress, advocacy groups, and others. (Comments may be viewed at the NMB's website at ( http://www.nmb.gov ). Additionally, the NMB received written and oral comments from nine individuals and representatives of constituent groups under the RLA that participated in the March 28, 2019 open public hearing.

All of the comments reflected strongly held views for and against the NMB's proposed change. The NMB has carefully considered all of the comments, analyses, and arguments for and against the proposed change. The commenters supporting the Board's proposed change stated that the proposal was clearly authorized by the statute and that it would simplify an unnecessarily complex procedure. In its comment in support of the NPRM, the National Railway Labor Conference (NRLC) stated that the “Board's proposal is modest and sensible and strikes the proper balance between stability of labor relations—which is critical to the railroads—and the statutory right of employees `to determine who shall be the representative of the craft or class'” under Section 2, Fourth of the Act. The NRLC noted that there is “already a decertification mechanism under the RLA. Thus, any suggestion that the Board is contemplating a significant or unprecedented change in representation is hyperbole. The change under consideration is a minor, incremental adjustment that will merely make the existing procedure clearer and simpler.” Based on their own experience with the current procedures several individuals who had filed applications as the straw man expressed strong support for a direct decertification procedure. The National Right to Work Legal Foundation (Right to Work) stated that the proposed change is “long overdue,” and the NPRM is “needed to ensure that all employees have an equal and fair choice regarding union representation. The Board has statutory authority to adopt the proposed rules, and should do so as soon as possible.” Americans for Tax Reform stated the “NMB's proposed rule would restore balance and ensure that all workers, whether they want union representation or not, are treated equally.” The Competitive Enterprise Institute (CEI) stated that the proposed rule would eliminate confusion in the decertification process since employees desiring decertification would no longer have to recruit a craft or class member to appear on the ballot as the straw man or convince a majority of employees to sign authorization cards for the straw man while also explaining that this individual is not actually going to represent them. Instead, employees would simply collect cards in support of no union representation. The proposed change, in the view of the CEI, would also protect employees from harassment, citing examples of on-line bullying. Rusty Brown of RWP Labor stated that “[a]ll Americans should have the right to unionization but should also have the right to remove these unions as their bargaining representative through a straightforward and efficient means.”

Some of the arguments in favor of the NPRM will be discussed in greater detail in the discussion that follows; however, the preamble will focus on the Board's response to the substantive arguments raised by those opposed to the NPRM.

Commenters to the Board's proposal to make its current decertification procedure more simple and direct expressed widely divergent views of the NPRM and the Board's process in formulating the NPRM. The Board's response to those comments is as follows.

Some of the comments opposed to the NPRM question whether the NMB possesses the statutory authority to make the proposed change. The International Association of Machinists and Aerospace Workers, AFL-CIO (IAM)  2 states that “the Board plainly lacks statutory authority to issue this proposed rule. In fact, Congress has expressly forbidden the action now proposed.” While conceding that the RLA neither mentions nor requires a decertification procedure, the IAM asserts that the NPRM is “contrary to the plain language of the Act.” The Transportation Trades Department of the AFL-CIO (TTD) asserts that the proposed change exceeds the Board's narrow statutory authority to investigate and certify employees' choice of a union representative. Since, unlike the NLRA, Congress has not amended the RLA to provide an express provision for decertification, the TTD states that the current straw man procedure is the only method for decertification allowed by Section 2, Ninth. One commenter, Deven Mantz, Brotherhood of Maintenance of Way Employes Division-IBT North Dakota Legislative Director, stated that work groups should only be allowed to change unions, not become “not Union completely.” The TTD, IAM, Association of Flight Attendants-CWA (AFA), and other commenters opposed to the NPRM also suggest that Congress' decision to amend the Act to set a 50 percent showing of interest requirement for representation disputes under the RLA is further evidence that the scope of representation disputes under the RLA is limited to applications “requesting that an organization or individual be certified as the representative of any craft or class of employees.”

With one exception, most opposing commenters acknowledge that employees have the right under the RLA to decertify their representative so long as an employee agrees to act as the straw man and gathers the requisite showing of interest from their fellow employees authorizing the straw man to represent them even though the straw man or the employees want to become unrepresented. During the election, employees must either vote for no representation or for the straw man with the understanding that the straw man will disclaim. The commenters opposed to the NPRM essentially argue that the Act compels the filing of an application for representation even if the straw man applicant, the employees in the craft or class, the incumbent union, and the Board all know that the desire of the employees invoking the Board's services is an election on the question of whether to remain represented. If the Act prohibits decertification, then there can be no indirect decertification. But that is not the case.

As has previously been stated, the RLA makes no mention of decertification and it also sets forth no specific procedure for representation. Air Transp. Ass'n of Am. v. NMB, 663 F.2d 476, 485 (D.C. Cir. 2011) ( ATA ). Section 2, Ninth gives the Board the authority to investigate representation disputes and ascertain the identity of the employees' representative through a secret ballot election or “any other appropriate method of ascertaining the names of the duly designated and authorized representatives.” The Board is given broad discretion with respect to the method of resolving representation disputes with the only caveat being that it “insure” freedom from carrier interference. ABNE, 380 U.S. 650, 668-669 (1965).

The courts have also long rejected the idea that the absence of a decertification provision means the Board has no power to decertify a union. Since employees have the right to reject representation under the RLA, inherent in the Board's authority to certify a representative is the power to certify that a particular group of employees has no representative. BRAC, 402 F.2d 196, 202 (D.C. Cir. 1968). In Russell, discussed above, the court found that the Board exceeded its statutory authority by dismissing a representation application with a valid showing of interest because the applicant did not intend to represent the craft or class for purposes of collective bargaining, contract disputes, and grievances. Rather, if certified, Mr. Russell intended to abrogate the contract and disclaim representation. Mr. Russell was the straw man and the purpose of seeking an election was the decertification of employees' incumbent union. The court found, however, that Mr. Russell did intend to represent the employees within the meaning of Section 1, Sixth which defines “representative” as “any person or persons, labor union, organization, or corporation designated either by a carrier . . . or by its employees, to act for it or them,” since a majority of the craft or class wanted Mr. Russell to take the steps necessary to terminate collective bargaining. 3 Russell, 714 F.2d at 1342. It is clear that the Board has the authority and the obligation to accept applications from employees where the question concerning representation is whether employees want to reject representation.

The TTD and other commenters opposed to the NPRM assert that Section 2, Twelfth limits the Board's authority under Section 2, Ninth and preclude the Board's proposal for direct decertification. The TTD argues that the language of Section 2, Twelfth requires that applications filed with the NMB under Section 2, Ninth are only those “requesting that an organization or individual be certified as a representative of any craft or class of employees” and that “the proposed rule cannot be reconciled with that language.” The IAM asserts that Section 2, Twelfth is an “additional statutory limit on the Board's authority to carry out its authority to make a representation determination.” The Board agrees that Section 2, Twelfth places an additional limitation to the Board's authority under Section 2, Ninth, but that limitation is simply that once requested to investigate a representation dispute, the NMB cannot direct an election or use any other method to determine the representative of a craft or class of employees without a showing of interest of not less than 50 percent of employees in the craft or class. Representation Procedures and Rulemaking Authority, 77 FR 75545 (Dec. 21, 2012) (2012 NMB Rulemaking).

In the Board's view, the language of Section 2, Twelfth must be read in the context of Section 2, Fourth, which gives the majority of any craft or class the right to determine who their representative shall be, and Section 2, Ninth, which places an affirmative duty to determine the employees' choice of a representative when a representation dispute exists; the dispute is among a carrier's employees; and one of the parties to the dispute has requested the Board's services. See Ry. Labor Execs' Ass'n v. NMB, 29 F.3d 655, 666-67 (D.C. Cir. 1994) (RLEA ). Section 2, Twelfth does not require employees or their representative to pretend to seek certification in order to vindicate their statutorily protected right of complete independence in the choice to be represented or be unrepresented.

The FAA Modernization and Reform Act of 2012, Public Law 112-95 (2012 FAA Modernization Act), contained, inter alia, several amendments to the RLA  4 including the addition of Section 2, Twelfth. Section 2, Twelfth titled “Showing of interest for representation elections,” provides that the Board,

Prior to these amendments, the showing of interest requirements needed to support an application under Section 2, Ninth invoking the Board's services to investigate a representation dispute among a carrier's employees were established by the exercise of the Board's discretion and not defined by statute. The NMB's Rules provided that an individual or organization needed to support their application with authorization cards from thirty-five percent of the craft or class if those employees were unrepresented and authorization cards from more than fifty percent of the craft or class if those employees were already represented. 29 CFR 1206.2. An intervening individual or organization needed a thirty-five percent showing of interest to get on the ballot. 29 CFR 1206.5.

The NMB has consistently interpreted the language of Section 2, Twelfth as requiring a valid showing of interest of 50 percent for any application invoking its services to resolve a representation dispute. In its 2012 rulemaking to modify its rules to reflect the amended statutory language, the Board rejected arguments that Section 2, Twelfth did not apply to applications resolving the representation consequences of mergers of two or more carriers. The Board stated the RLA

The Board finds further support for its position in the Conference Report for the 2012 FAA Modernization Act (Conference Report). The most dispositive indicator of legislative intent is the conference report. United States v. Commonwealth Energy Sys., 235 F.3d 11, 16 (1st Cir. 2000). With regard to the NMB, the Conference Report notes that the House bill, Section 903, provided for the repeal of the Board's 2010 Representation Rule, summarized as changing “standing rules for union elections at airlines and railroads, which counted abstentions as votes `against' unionizing, to the current rule which counts, only no votes as `against unionizing, abstentions do not count either way.” H.R. Conf. Rep. No. 112-381, at 259 (2012). The Senate bill contained “no similar provision.” Id. The conference action report states that repeal of the NMB's representation rule “was not agreed to by the Conference, and is not included in the final bill.” Id. The conference committee did agree, inter alia, to “amend section 2 of the Railway Labor Act by raising the showing of interest threshold for elections to not less than fifty percent of the employees in the craft or class.” Id. at 260 (emphasis added). The use of the term “election” without qualification does not suggest that Congress intended to limit the Board's authority to only those requests to certify a representative. The 2012 amendments were not intended to limit the types of representation disputes among carrier employees to be resolved by the Board under Section 2, Ninth. The authority of the NMB to resolve all representation disputes—disputes involving employees' right to become represented, to change representation, or to become unrepresented—is essential to preserve employee free choice. The statutory interpretation urged by the TTD, IAM, and other commenters opposed to the rule would profoundly alter the Board's core authority under Section 2, Ninth. 5 Congress, however, does not use vague schemes or ancillary provisions to alter the fundamental details of a regulatory scheme— it does not, as the adage says, hide elephants in mouse holes. Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 468 (2001); MCI Telecomms. Corp. v. AT&T Co., 512 U.S. 218, 231 (1994). The 2012 amendments were aimed at the Board's discretionary practices applicable to all applications, namely the showing of interest requirements and the run-off procedures, in response to the Board's decision to change the way it counted ballots in all representation elections.

In the Board's view, TTD's emphasis on the words “application requesting that an organization or individual be certified as representative” is misplaced. Section 2, Ninth gives the Board broad authority to determine employees' choice of representative. As the D.C. Circuit has noted, the right of employees to reject representation yields the corollary that the Board possesses the implied power to certify to the carrier that a craft or class of employees has rejected representation. BRAC, 402 F.2d 196, 202 (1968) (citing ABNE, 380 U.S. 650 (1965)). Following its duty under Section 2, Ninth, the result of every NMB representation elections is the official notification to the parties and the carrier as to who is the designated representative of the craft or class at issue. When employees choose to become represented or change representation, the notification is titled a “certification.” When the employees choose to become or remain unrepresented, the notification is titled a “dismissal.”

Commenters opposed to the NPRM also suggest that the fact that the Government Accountability Office (GAO) did not recommend a change to the NMB's decertification process and Congress' subsequent inaction is tantamount to a Congressional limitation on the Board's statutory authority under the RLA. The TTD stated during the hearing that the Comptroller General was to make recommendations to the Board and appropriate congressional committees regarding actions that may be taken by Congress or the Board to ensure that processes are fair and reasonable for all parties, and no recommendations were made.

In fact, Section 165(b) of the 2012 FAA Modernization Act did direct GAO to review, evaluate and make recommendations to the Board and congressional committees within 180 days of enactment of the law regarding the Board's certification procedures. However, that mandate was terminated by the three congressional committees of jurisdiction within 134 days after the enactment of the law, according to GAO documentation. Revae Moran et al., U.S. Gov't Accountability Office, GAO-12-835R, “National Mediation Board Mandates in the FAA Modernization and Reform Act of 2012” (June 27, 2012). The congressional committees instead accepted a Congressional Research Service report (CRS Report) summarizing the differences between the three major federal labor relations laws. See generally Alexandra Hegji, Cong. Research Serv., R42526, “Federal Labor Relations Statutes: An Overview” (May 11, 2012). The CRS Report notes that Congress has enacted three major laws that govern labor-management relations in the private and federal sectors: the RLA, the NLRA, and the Federal Service Labor-Management Relations Statute. The CRS Report provides “a brief history and overview of each of these statutes. It also discusses key statutory provisions for each statute.” Id. at 1. The CRS Report's discussion of decertification states that, although the NMB does not have a formal procedure for decertifying a union, it has “several practices that effectively remove an incumbent union's certification.” Id. at 8 (citing ABA, “Selecting a Bargaining Representative,” The Railway Labor Act, 1st Edition, pp. 135-137 (1995)).

The Board believes that Congressional termination of this GAO research directive and reliance on the CRS Report which merely summarized then-current procedure has no effect on its statutory authority. Before and after the 2012 FAA Modernization Act, the authority to carry out the statutory mandates of the RLA was and is delegated by Congress to the Board. No other agency possesses this authority and the audit provisions added to the RLA by the 2012 FAA Modernization Act do not in any way circumscribe this authority.

45 U.S.C. Section 165(a) provides for the “audit and evaluation” of the programs and expenditures of the NMB by the Comptroller General. An evaluation and audit “shall be conducted not less frequently than every 2 years . . . [or] as determined necessary by the Comptroller General or the appropriate congressional committees.” GAO has conducted such an audit of the NMB in 2013, 2016, and 2018. At the time of this rulemaking, GAO is conducting the 2020 audit. As discussed above, section 165(b), which was terminated, provided for an “immediate review of certification procedures.” This review was to be separate from the biannual evaluation and audit and required the Comptroller General to review the NMB's process to certify or decertify representation to ensure that the processes are fair and reasonable for all parties by examining whether the NMB's processes or changes to those processes are consistent with congressional intent. The provision also required a comparison of the NMB's representation procedures with procedures under other state and federal labor statutes including justification for any discrepancies.

The 2013 GAO Report made no recommendations for the changes to the NMB's representation processes because it found that that the NMB had responded to industry legal challenges and stakeholder disagreements and its procedures were consistent with other federal labor relations statutes. U.S. Gov't Accountability Office, GAO-14-5, “Strengthening Planning and Controls Could Better Facilitate Rail and Air Labor Relations” (Dec. 3, 2013). The 2013 GAO Report concluded that the 2010 Representation Rule change “caused disagreement among some stakeholders,” and, with regard to decertification, the GAO Report stated

Thus, GAO concluded and Congress accepted the conclusion that the NMB's certification and decertification procedures were reasonable and consistent with other federal statutes. This conclusion in no way precludes the NMB's obligation to make those procedures less complex and convoluted in order to better effectuate its statutory mandate.

Commenters including the TTD, the Southwest Airlines Pilots Association, and the AFA, also assert that the Board is exceeding its statutory authority by changing the language of 29 CFR 1203.2 to allow the investigation of an application to be filed by “an individual seeking decertification.” These commenters misinterpret the NPRM and the Board's intent as, in fact, the Board agrees that the Board may investigate a representation dispute only upon the request of the employees involved that dispute, or their representative. As the D.C. Circuit stated in RLEA, “[f]or the Board to act otherwise is for the Board blatantly to exceed its statutory authority.” 29 F.3d 655, 665 (D.C. Cir. 1994). The Board agrees with these commenters that only employees or their representatives may invoke the Board's services under Section 2, Ninth to resolve a dispute regarding the identity of their collective bargaining representative. To make clear the Board's intent, the text of Section 1203.2 has been clarified in the final rule to require an employee to file a decertification application.

Under the proposed rule change, an employee must file an application asserting that a representation dispute exists among the identified craft or class. This application must be supported by a valid showing of interest from 50 percent of the craft or class. The difference is that the Board will now accept authorizations that clearly and unambiguously state the employee's desire to no longer be represented by their incumbent union. Such an authorization will clearly indicate the intent of the employees and where it is clear that the petitioning employees wish to be free of the incumbent representative, the Board will authorize an election and the ballot will include the incumbent union and the no representation option, along with the write-in option. The applicant's name will not be included on the ballot because the Board is eliminating once and for all the forced pretense that employees are authorizing the applicant to represent them.

Almost all of the commenters opposed to the NPRM suggest that the Board has not provided an adequate justification for this change. The TTD notes that the NMB does not claim any changed circumstances that have led it to reevaluate a practice that it has stated is consistent with the statute and allows employees an ample opportunity to alter their representation. Many of the commenters opposed to the NPRM also argue that the Board is somehow bound by prior statements that the change is unwarranted. Some commenters point to the 1987 statement that it would only make such a change if it was “required by statute or essential to the administration of the Act.” In re Chamber of Commerce, 14 NMB 347, 360 (1987) ( Chamber of Commerce ). Other commenters rely on statements in the 2010 Representation Rule that the existing straw man procedure together with the option to vote for “no representation” allows employees to rid themselves of a collective-bargaining representative. 75 FR 26078.

Commenters discussed the various justifications for the rule change in the NPRM and provided additional policy reasons in support of and in opposition to the proposed change. Before discussing those specific issues, the Board notes, as it did in the 2010 Representation Rule, that under FCC v. Fox, 556 U.S. 502 (2009), agencies are free to adopt an interpretation of its governing statue that differs from a previous interpretation and that such a change is subject to no heightened judicial scrutiny. ATA, 663 F.2d 476, 484 (D.C. Cir. 2011). Nor did the Board adopt a “compelling reasons” standard in In re Chamber of Commerce. Id. In upholding the Board's 2010 Representation Rule, when the NMB finally made a change to the way it counted ballots that it had previously considered and rejected several times, the D.C. Circuit stated that “the fact that the new rule reflects a change in policy matters not at all” and that “under the APA, the question for us is whether the Board considered all the facts before it, whether it drew reasonable inferences from those facts and whether the final decision was rationally related to those facts and inferences.” Id. As discussed in Section A, the Board believes it has the statutory authority to provide employees with the option to directly request a decertification election rather than making them seek decertification in the guise of certification with a straw man. As discussed below, the Board also believes that direct decertification better protects the right of free choice of representatives by eliminating a confusing and counterintuitive process that requires employees to ostensibly seek representation to vindicate their right to be unrepresented.

Commenters opposed to the NPRM state there is no evidence to support the Board's statement that the straw man process is “unnecessarily complex and convoluted.” The Board, however, received many comments regarding the confusion that is inherent in the straw man process. Many commenters supporting the NPRM, including Allegiant Air, CEI, NRLC, Gregg Formella, and the U.S. Chamber of Commerce (Chamber), noted that the Board's straw man procedure is inherently confusing because employees must authorize a representative to trigger an election to remove their representative. As the Chamber stated in its comment, “[i]n order to achieve decertification, employees have to collect authorization cards in support of electing a representative they do not actually want and even though the vote is about declining further representation.” Right to Work, which provides free legal services to individual employees, stated that its attorneys regularly receive calls from employees seeking information about their right to disassociate from unions and that a “result of the inquiries is that RLA-covered employees are often left confused and disheartened when the straw man rules are explained to them.” Right to Work described the NMB's current decertification procedure as “daunting” to employees and stated that “many RLA-covered employees simply give up when the straw man obstacles are explained to them.” Many comments in support of the NPRM noted the potential for confusion because both the straw man and the “no representation” option appear on the ballot. The CEI noted that under the current procedure, “employees are faced with a ballot with the straw man and a no union option which causes confusion. Some employees who wish to remove union representation will reason they should vote for the straw man because that is the ballot option for which they signed an authorization card. However, other employees who similarly desire to reject union representation will vote for the no union option. This splits the vote for decertification.” Rebecca Smith of Rock Creek House Consulting, LLC stated that she had assisted pilots in decertification efforts and “no matter how well I explain it to those who ask, on voting day there is still confusion over the `straw man.' This confusion leads to people voting for the `straw man' because they believe it reflects their choice not to be represented.” Ms. Smith added that, in her view, making the process more straightforward “also clarifies for those who want to be represented where to cast their vote since the current ballot gives them what appears to be several choices for representation.” The Board takes notice that in both successful and unsuccessful straw man elections employees cast votes for both the straw man and “no representation.” Jeremy Dalrymple of the Heritage Foundation noted that not only is the straw man procedure “counterintuitive because it requires employees that are seeking to divest themselves of representation first petition for a strawman to represent them, but, given the nationwide system of representation under the RLA, there are significant barriers to communicating the convoluted concept of the `strawman' to employees spread across multiple geographic locations.”

The comments from individuals who had been a straw man supported the view that the current procedure is confusing. Steven Stoecker, who filed an application as the straw man in Allegiant Air, 43 NMB 84 (2016), stated that he had to convince “half of my work group . . . to sign an authorization card that stated that I wanted to represent them, even though I didn't want to. Trying to explain to the rest of the work group that in order to decertify and become unrepresented, they have to sign a card authorizing me to represent them was confusing to say the least.” Following the Board's authorization of the election, Mr. Stoecker stated that “I had a short window of time to campaign and remind my colleagues to not vote for me but rather to vote `no representation.'” Ronald Doig, another employee who served as the straw man in Allegiant Air, 42 NMB 124 (2015), commented,

Firsthand accounts from straw men also revealed the hostility, threats, and retaliation directed at them by union supporters. The comments from Mr. Stoecker, Mr. Woelke, straw man in Flight Options, LLC/FlexJet, LLC, 45 NMB 95 (2018), and Mr. Doig described the burden borne by the straw man. According to Mr. Stoecker, “[t]he straw man also has a target on his back since his name is on all the authorization cards and on every election ballot . . . Elimination of the straw man will be beneficial from the standpoint that no one individual will have to bear the brunt of union attacks during a decertification effort.” A comment from Frank Woelke, who also filed an application as the straw man, described his own experience, including the exposure of personal information on the internet, online personal attacks, and vulgar post cards and suspicious packages sent to his home. Mr. Woelke stated that “[n]obody in his right mind would want to stand up as a Strawman” knowing the intimidation, slander, and harassment they will be exposed to because of the NMB's procedures. Mr. Doig stated that he was subject to retaliation from the union and its supporters and expressed the view that it “is almost as if the process is set up to be a deterrent to decertification efforts by making a target out of the Straw Man. Again, a straight forward [ sic ] process will remove the Straw Man's name form the ballot and give employees the freedom to exercise their rights without that fear.”

The TTD argues that the straw man will still exist and that nothing has been simplified by the NPRM. The Board disagrees. Under the current procedures, an individual employee files an application supported by valid cards from 50 percent of the craft or class authorizing that individual to represent the employees for purposes of collective bargaining under the RLA. Following the Russell decision, the Board does not inquire into whether the individual actually intends to represent the craft or class or the individual is the straw man. The Board simply authorizes the election and conducts a tally. Sometimes the individual is certified. Sometimes the incumbent representative is decertified. Under the proposed change, employees who want to become unrepresented will express that desire for decertification in their showing of interest and the individual applicant's name will not appear on the authorization cards or the ballot. If, however, 50 percent of employees in a given craft or class want one of their co-workers to represent them instead of their incumbent representative and that individual files an application with a valid showing of interest indicating that 50 percent of the craft or class want that individual to represent them in collective-bargaining under the RLA, the Board will still authorize an election and conduct a tally. The ballot will include the applicant's name, the incumbent union, the no representation option, and the write-in option. In that circumstance, the individual applicant will no longer be a straw man. Under the rule change, employees will now have the ability to directly express their desire to become unrepresented instead of hiding it behind a straw man. The intent to decertify will be clear through authorization cards stating that they no longer wish to be represented by their incumbent union and the individual who filed the application will not appear on the ballot.

The IAM states the NPRM is a “solution in search of a problem.” Other commenters like the TTD, SWAPA, and IBT state that the straw man process is adequate as employees currently use it and succeed in decertifying their union. In her comment, Senator Patty Murray stated that there already is “a well-established process for aviation and rail workers to remove their union representation or change union representation should they choose to do so.” The comments received from individuals who have used the current procedure, however, demonstrate that it is confusing, counterintuitive, and often unduly burdensome for the employee who acts as straw man. The Board's own experience with calls and inquiries from employees seeking to become unrepresented bears this out. The Board believes the current straw man procedure requires employees who wish to become unrepresented to take an additional, unnecessary, and counterintuitive step to get an election to determine whether the majority of employees in their craft or class desire to become unrepresented. When employees who are currently unrepresented want representation, they file an application supported by a showing of interest for the organization they want to represent them. When employees who are currently represented want to change their representation, they file an application supported by a showing of interest for the new organization they want to represent them. When employees no longer wish to be represented, they file an application supported by a showing of interest for someone who they don't want to represent them but they must say they want as a representative to get an election to vote against the incumbent representative they no longer want. The Board's proposal will simply allow employees who no longer want representation to directly state that to the Board, in both their application and on their showing of interest and to get an election to resolve the representation dispute they actually have.

The Board is not adopting this proposal to promote decertification. The Board has no stake in the outcome of a representation dispute. Its statutory role is to act as a neutral “referee” in representation matters. Switchmen v. NMB, 320 U.S. 297, 304 (1943). The Board “simply investigates, defines the scope of the electorate, holds the election, and certifies the winner.” ABNE, 380 U.S. 650, 667 (1965). The Board believes that the proposed change is necessary to fulfil its statutory mission to protect employees' right to free choice in representation, including the choice to be unrepresented. The choice in every representation dispute belongs to the employees of the craft or class involved, not to the Board. And employees who no longer want collective representation have the right to bring that dispute directly to the Board and have it resolved.

Commenters opposed to the NPRM referenced and supplied statistics regarding the number of applications that resulted in no representation. The TTD states that employees freely and frequently alter their representatives and submitted a chart showing elections in which, after an application was filed by an individual or “small unaffiliated organization,” some incumbent unions were decertified, some incumbent unions remained certified, and some individual/small unaffiliated organizations were certified. Some incumbent unions chose to disclaim representation when faced with a potential challenge rather than go to an election.

Based on its chart, the TTD states since 1998, a total of 43 individuals or “likely straw men” filed applications and in 27 of those elections, the incumbent representative was “effectively decertified” since either no representation won or the individual was certified. 6 The TTD also states that since 1998, 51 small unaffiliated organizations, which it terms “potential straw men” have filed applications and of those elections, 11 resulted in no representative being certified and 19 resulted in the small unaffiliated organization being certified. The TTD also concedes that some of those small unaffiliated organizations “may have continued as a representative.” The Board agrees that these statistics show that employees change representation or successfully use the straw man procedure to become unrepresented. 7 However, these statistics provide no evidence regarding how many employees find the straw man process too confusing, or are unable to find someone willing to face hostility from union supporters and be the straw man or can convince enough of their fellow employees to sign cards authorizing an individual to represent them when they really don't want representation in the first place.

In representation disputes, the Board's interest is that the dispute is resolved and the result reflects the free and uncoerced choice of a majority of the craft or class. Whether employees choose representation or reject representation is up to them, not the Board. What does matter to the Board is whether the election process allows them to freely exercise their right to choose; and the Board believes the current proposal to eliminate the straw man and allow direct decertification will better effectuate employees' right to choose.

When representation is desired by the employee group, the existence of a direct decertification process clearly broadcasts that the chosen representative does indeed hold the power to negotiate and advocate for the work group. In comments supporting the proposal, the NRLC pointed out that “if anything, the proposed rule strengthens an incumbent union by confirming that the union continues to enjoy the support of a majority of employees.”

The Board agrees about the value of stability in the air and rail industry, as defined as a lack of disruptions caused by strikes and work stoppages. The Board's “almost interminable” mediation processes is given much of the credit for preventing disruptions to interstate commerce. Detroit & Toledo Shore Line R.R. Co. v. United Transp. Union, 396 U.S. 142, 149 (1969). The Board also notes that the statutory showing of interest requirement contributes to stability, because the statute requires a valid showing of interest from 50 percent of the craft or class to trigger a representation election and there is system-wide representation under the RLA. As the NLRC noted in its comment, “[d]ecertification elections on the large Class I carriers have been rare, to say the least. Any suggestion that the contemplated changes to the current rules will generate a massive upsurge in decertification campaigns is, at best, speculative.” The Board will not predict the choices employees will make in the future, but it must act to facilitate the statutory mandate of free choice of representation, rather than forced unionization for the sake of stability.

The Board's representation process is the predicate to establishing a collective-bargaining relationship, but the statute mandates that the choice to become represented or unrepresented is the employees' decision and theirs alone. The Russell court rejected the Board's contention the employee free choice in representation election was subordinate to the RLA's purpose of avoiding work stoppages through collective representation and bargaining. While the court agreed that the RLA encourages collective bargaining as the mode by which disputes are to be settled and work stoppages avoided, the Act does not compel employees to choose collective representation. Russell, 714 F.2d 1332 at 1344. Employees under the RLA have complete independence to organize or not to organize and this necessarily includes the right to reject collective representation. Id.

Commenters opposed state that the NPRM creates an increased risk of carrier interference in representation disputes. The AFA stated that the NPRM will embolden an employer to inject itself into the decertification process. IAM states that the proposed rule “would no doubt embolden outside organizations funded by employer groups or interests in ways that are opaque to both the Board and employees, to seek to decertify elected officials.” The TTD states that, without a straw man, there will be no identified individual to be held accountable throughout the process, and carriers will be “emboldened to interfere in the election process by hiding behind the relative anonymity of the Board's new proposed decertification applications.” The Board's proposed rule change does not eliminate accountability. As previously discussed, the Board cannot and is not changing who is allowed by statute to invoke its services to resolve a representation dispute. Further, an employee will still be required to file an application to seek decertification under the NPRM, as is clearly stated in the new Section 1206.5. The employee filing the application will still be the responsible party during the representation process as they are now. The difference is that a straw man will no longer be required. Instead, the ballot will be limited to the incumbent representative, the no representation option, and the write-in option.

The RLA protects the right of employees to select their representatives without carrier influence or interference. The Board has long held that actions or activity by a carrier that fosters, assists, or dominates an applicant may result in dismissal of a representation application because the authorizations are tainted, N. Air Cargo, 29 NMB 1 (2001), or disqualify the applicant as an employee representative, Mackey Int'l Airlines, 5 NMB 220 (1975). 8 There is nothing in the NPRM that suggests the Board would or intends to abrogate its duty to protect the right of employee to be free from carrier interference in their choice of whether to get or reject representation, and indeed we do not do so in this final rule.

Unlike the NLRA, 9 the RLA does not place any time limits on when applications to investigate representation disputes can be filed. The Board, however, has adopted time limitations on the filing of applications for the same craft or class on the same carrier. Under Section 1206.4(a), the Board will not accept an application filed within two years of the certification of a collective bargaining representative. Under Section 1206.4(b), the Board will not accept an application filed with one year of the dismissal of an application. As discussed below, the Board has modified these time limits several times in order to strike the appropriate balance between employees' organizational rights, labor stability, and the disruptive effect in the workplace from frequent elections.

Prior to 1947, following a certification, it was “the policy of the Board not to conduct repeat elections until the organization certified has had a reasonable period to function as the duly authorized representative of employees.” 13 NMB Ann. Rep. 4 (1947). This reasonable period was one year. In the NMB's 1947 Rulemaking, this period was extended to two years. 12 FR 3083 (May 10, 1947). The Board stated that the “policy of the Board in this connection derives from the law which imposes upon both carriers and employees the duty to exert every reasonable effort to make and maintain agreements. Obviously, this basic purpose of the law cannot be realized if the representation issue is raised too frequently.” 13 NMB Ann. Rep. 4. The Board observed that many representation disputes arose out of the competition between labor organizations. Id. In 1954, the Board revised its rules to impose a one year limitation on the filing of applications for the same craft or class on the same carrier where (1) the election resulted in no representative being certified; (2) the application was dismissed by the Board on the grounds no representation dispute existed;  10 or (3) the applicant withdrew the application after it was formally docketed. 19 FR 2121 (Apr. 13, 1954). In making this change, the Board stated that “representation campaigns and the organizing campaigns which necessarily precede them cause unsettled labor conditions and, in many cases, disturb employees substantially in the discharge of their duties. It is contemplated that the [rule change] will prevent hasty refiling of applications which have previously been dismissed by the Board.” 20 NMB Ann. Rep. 10 (1954). The 1954 rule contained a proviso that the three conditions would “not apply to employees of a craft or class who are not represented for purposes of collective bargaining.” 19 FR 2121. The effect of the proviso was to exempt applications pertaining to unrepresented employees from the filing time limitations. 45 NMB Ann. Rep. 10 (1979). Thus, in cases where unrepresented employees chose to remain unrepresented, there was no time limitation whatsoever and a new election could be sought the very next day. In 1979, the Board amended Section 1206.4 to make the time limits applicable regardless of whether or not the employees covered by the application are represented for purposes of collective bargaining. Id. The Board did not change the existing time limits of a two year bar post-certification and a one year bar following dismissal on the three enumerated grounds. Comments opposed to applying the time limits to all NMB representation applications regardless of whether the employees involved were represented or unrepresented asserted that the bar rules could be used to frustrate employee organization, for example, if an applicant dominated by a carrier filed to frustrate a legitimate organization. In response, the Board stated that the language in Section 1206.4 providing an exception to the time limits “in unusual or extraordinary circumstances,” would allow the Board to remedy a company dominated union situation as well as “an election which was improperly affected by a carrier or other interference at some stage of the proceeding.” 44 FR 10602 (Feb. 22, 1979). Thus, the Board has expanded the time limitations placed on applications several times to balance the statutory right of freedom of choice in organizing with the need for labor-management stability and to avoid undue disruption to the workplace from continual representation elections.

Commenters opposed to the two year limitation following decertification, including the IBT, the IAM, the TTD, the AFA, the Association of Professional Flight Attendants, the Allied Pilots Association, and some Members of Congress, contend that the proposed change is an unwarranted, unjustified, and impermissible restriction on employees' right under the RLA to organize and bargain collectively through representatives of their own choosing. The Board disagrees. As the foregoing discussion establishes, the NMB has both placed time limitations on the filing of applications and expanded those limitations based on considerations of labor stability and disruption to the workplace. All of these limitations—including the current two year limitation post-certification—represent a degree of restriction on employees' exercise of their right to choose or reject collective bargaining representatives. And all of these limitations reflect an exercise of the Board's discretion to balance competing interests. The proposed change reflects the Board's belief that both certification and decertification are significant undertakings by employees with a substantial impact on the workplace and employees' relationship with their employer. This belief is supported by the comments of Ronald Doig, an employee who successfully led a decertification effort using the current straw man procedure. According to Mr. Doig,

Commenters opposed to the proposed change to have the two year limitation in Section 1206.4(a) apply to decertification as well as certification assert that the change is unwarranted and the Board draws an improper parallel between certification and decertification. The commenters opposed state that the two year limitation post-certification is justified by the need for a newly certified representative to be afforded an insulated period to bargain for an initial contract and if necessary participate in mediation before its representative status is challenged. 11 The Board has not sought to alter this two year period post-certification and views it as an appropriate balance between the goal of labor stability and the statutory obligation to facilitate free choice in representation or rejection of representation. The proposed rule change does not affect this limitation. Rather the proposed change recognizes that the transition from represented to unrepresented has a significant impact on the employees and their workplace. The current two year limitation gives the union a chance to demonstrate the value of its services to the employees who elected it. After decertification wherein the majority of employees chose to reject representation, it is only fair to give employees a chance to experience the effects of their choice on their workplace.

If a union has become decertified, it is because a majority of the employees in the craft or class have decided that that they no longer want that representative. The RLA encourages collective bargaining between employee representative and the employer, but it gives employees the absolute right to choose to reject representation. The Board is simply giving employees who have rejected representation an additional year to experience their workplace and their direct relationship with their employer before another representation dispute can be raised in their work group. The two year limitation is on the time to file an application. Since the authorization cards can be dated by employees up to one year from the date of the filing of the application, employees, if they so choose, can begin organizing a year after decertification. Commenters in support of the rule noted that without this rule change, organizing can begin the day after an election which results in a decertification, and employees are afforded no period of repose at all.

A former practitioner and advocate before the NMB opposed to the proposed change states in his comment that a two year limitation “neither applies to the NMB `indirect' decertification process nor to any decertification provisions in other federal statutes or regulations.” The Board does not find these arguments persuasive. As previously discussed the RLA makes no provision regarding limitations on applications. These rules have been, and remain, an exercise of the Board's discretion. The Board notes that it is equally true that a two year limitation following certification is not provided in other federal statues or regulations. Under the NLRA, the period of repose is at least one year for certification or decertification. Under the FLRA, the election bar is also one year for certification or decertification. NMB also applies a two year limitation regardless of whether the certification is a newly certified representative or the certification of an incumbent union following a raid or merger. Further, under the current indirect decertification, if a straw man is certified, the Board applies the two year limitation. If that straw man does not formally disclaim interest, an application for that same craft or class of employees at the same carrier would not be accepted by the Board for two years following the certification.

Under the proposed rule change, the additional time limit on applications will be limited to applications seeking to decertify an incumbent representative. It would be clear upon filing of the application that the intent of employees is to seek decertification. As discussed above, such an application filed by an employee or group of employees will be supported by a showing of interest stating that employees no longer wish to be represented by their incumbent union. A decertification election will be held where only the incumbent union, the no representation option, and the write-in would appear on the ballot. If a majority of employees vote for representation or if a majority of employees vote for no representation, there will be a two year limitation on applications seeking to represent the same craft or class at the same carrier. If the incumbency of an organization is challenged in a raid—by another organization or individual seeking to represent that craft or class—and, in the election a majority of employees fail to vote for representation, the one year limitation will continue to apply as it will if a currently unrepresented employee group does not vote for representation.

Based on the rationale in the proposed rules and this rulemaking document, the Board hereby adopts the provision of the proposal as a final rule with the clarification in the text of Section 1203.2 in the final rule to require that an employee may file a decertification application. This rule will apply to applications filed on or after the effective date.

Chairman Puchala dissented from the action of the Board majority in adopting this rule. Her reasons for dissenting are set forth below.

Congress enacted the Railway Labor Act (RLA or Act), 45 U.S.C. 151, et seq., to create a comprehensive statutory scheme to prevent disruptions of interstate commerce through the prompt resolution of labor disputes between rail and air carriers and their employees. In Virginia Railway Co. v. System Federation No. 40, the Supreme Court articulated the purposes and objectives of the Act in terms of the duty to bargain, noting that the RLA's “major objective is the avoidance of industrial strife, by conference between the authorized representatives of employer and employee,” and its “provisions are aimed at the settlement of industrial disputes by the promotion of collective bargaining between employers and the authorized representatives of their employees.” 300 U.S. 515, 547-548 (1937). Thus, the RLA is a collective bargaining statute and its underlying philosophy is almost total reliance on collective bargaining for the settlement of labor-management disputes.

I dissent from the rule published today because the changes my colleagues have adopted are unnecessary and contrary to the purposes of the Act. In my view, these changes will impede rather than support the mission of the Agency and the objectives of the Act.

The National Mediation Board (NMB or Board) administers the RLA, the oldest extant labor relations statute in the United States and it has been remarkably successful in fulfilling its statutory mission of insuring the right of railroad and airline employees to organize into free and independent labor organizations, of assisting labor representatives and carrier management in the prompt settlement of disputes over rates of pay and terms of work, of resolving grievances over the terms of existing contracts, and of accomplishing these aims without the interruption of transportation services essential to interstate commerce.

As an initial matter, I note and my colleagues concede, the RLA does not have an express statutory provision for decertification like the National Labor Relations Act (NLRA). From 1935 to 1947, the NLRA also lacked a statutory procedure for decertification. Congress, through the Taft-Hartley Act, provided a statutory mechanism for employees to seek decertification of their current bargaining representative. 29 U.S.C. 159(c)(1)(A). Congress has taken no similar action with regard to the RLA. Not in the 1950 amendments, when Congress referenced the Taft-Hartley Act in adding Section 2, Eleventh to permit the negotiation of union shop agreements. H.R. Rep. No. 81-2111, at 4 (1950). Not in 2012, when Congress provided for a 50% showing of interest in representation applications and mandated specific provisions for run-off elections. FAA Modernization and Reform Act of 2012, Public Law 112-95 (2012 FAA Modernization Act). There have been no changed circumstances since 2012 that would necessitate or justify Board or Congressional action with respect to a decertification rule. In my view, the addition of a direct decertification procedure to the NMB's representation procedures is a step to be taken by Congress through legislation and not by the Board through rulemaking.

While the RLA lacks a statutory decertification procedure, the existing representation procedures allow employees to get representation, change representation, and reject representation. As many of the commenters opposed to the rule observed, the Board already provides a method for employees to decertify their incumbent union. In the 2010 Representation Rulemaking, the NMB declined to reexamine its decertification procedures and noted that its “existing election procedures allow employees to rid themselves of a representative.” 75 FR 26,078. The 2010 Rulemaking allowed employees to affirmatively cast a ballot for “no union” and eliminated the most confusing step in the “straw man” process. 75 FR 26079. The election statistics submitted with the comments of the Transportation Trades Department of the AFL-CIO (TTD) demonstrate that employees can and do utilize the existing decertification process to become unrepresented. As the TTD further observed, while Board clearly receives more applications seeking the certification of a representative than the decertification, this represents a longstanding desire of employees in the air and rail industry to have union representation in the workplace rather than a problem with the NMB's election process.

In adopting a two year bar to representation applications following decertification, the majority ignores well-settled Board precedent recognizing the complexities unions face in establishing collective bargaining relationships and concluding labor agreements. The Board has long recognized that labor stability is enhanced by providing a reasonable period of time to establish a collective bargaining relationship. Jet Am., 11 NMB 173 (1984). Instead, my colleagues rely on a false equivalence between certification of a collective bargaining representative and decertification resulting in the return to at will employment.

My own experience in various labor-management capacities has allowed me to witness firsthand the monumental tasks unions face in establishing and maintaining quality representation for their members. This task is compounded by the fact that, under the RLA, unions represent nation-wide crafts or classes, namely all the employees performing the same work for the same employer regardless of their geographic location. This system-wide representation automatically expands the number of regional issues the union must be prepared to address in collective bargaining. Once certified, the union must continue to generate system-wide employee interest in establishing a template of representation that is reflective of member priorities and gives voice to member concerns. The union's constitution and bylaws, which reflect the rights of individual members, are reviewed and explained. Volunteer employees are appointed and elected to leadership positions on numerous committees including bargaining committees and health and safety committees.

Once certified, the union assumes the responsibility to initiate collective bargaining—often counted in years under the RLA—by training volunteers to work with union staff to set the bargaining agenda through a series of member surveys, meetings, and round table discussions. Even before bargaining commences, an elaborate communications system is launched to insure internal communications keep members at all work locations informed of the status of collective bargaining. Once a tentative agreement is reached, it must be reviewed and approved by the members. The ratified contract is enforced by a grievance procedure with an arbitration clause designed to protect individual and collective rights. In the rail and airline industries, a safety culture is promoted by the union through joint labor and management initiatives as well as separate union sponsored health and safety programs. Union activities are designed to promote the workers' agenda by creating opportunities for management to hear members' voices on workplace issues. This dialogue at labor-management meetings creates opportunities for both labor and management to improve the relationship and create ideas that further the goals of both parties. These obligations of bargaining and resolving grievances are all part of the statutory framework that Congress created. Section 2, First of the RLA states,

What happens when an incumbent union is decertified? The carrier develops and implements the rules of the workplace. It may voluntarily seek employees' views and participation on workplace issues, but is not required to do so. The union and its former members lack standing to bargain and maintain contracts and initiate and progress grievances. All rights reflected in the collective bargaining contracts are extinguished unless required by law or regulation.

Following decertification, obligations are removed rather than assumed. There is no longer an obligation to bargain. There is no longer an obligation to administer or enforce a collective bargaining agreement. There is no role for the NMB in mediation. And in my view, there is no statutory basis for imposing an administrative restriction of two years on employees' freedom to choose a representative following a decertification election that results in no representative. A one year election bar is sufficient for employees to witness the loss of their collective bargaining rights and the loss of stability that accompanies that forfeiture.

I believe it is punitive to deny access to RLA election procedures for two years given the increasing number of furloughs in the freight rail industry as carriers move to a new business model and as airline employees contend with the residual effects of widespread bankruptcies, mergers, and reorganizations. The negative consequences of decertification and stripping employees' collective bargaining rights goes beyond the potential loss of wage growth  12 to a lack of ability to protect negotiated provisions for health and retirement benefits, seniority rights that determine work hours and location, and furlough protections that give employees rights to return to their former positions. The rail and airline industries have a union density rate of 60-80% that I believe is largely due to a long history of negotiating protections for those actively employed as well as retirees.

The two year election bar which dictates a two year break in collective bargaining is also bad public policy. The RLA is designed to avoid interruption of interstate commerce. The primary tool the NMB uses to protect the public from interruptions of service is mandatory mediation of collective bargaining agreements between unions and air and rail carriers. This is why the RLA is predisposed to promote collective bargaining. This governmental exercise of control over the labor-management relationship requires disputing parties to enter NMB mandatory mediation for an “almost interminable” amount of time before either party can exercise self-help. Detroit & Toledo Shore Line R.R. Co. v. United Transp. Union, 396 U.S. 142, 149 (1969). A series of additional steps, a 30 day cooling-off period, a potential Presidential Emergency Board that recommends settlement terms followed by additional cooling off periods, and finally intervention by Congress under the Commerce Clause of the Constitution are all designed to promote the public's interest to avoid interruption of interstate commerce.

Consequently, I disagree with the Board majority's decision to make this change.

Chairman Linda Puchala.

This rule is not a significant rule for purposes of Executive Order 12866 and has not been reviewed by the Office of Management and Budget.

As required by the Regulatory Flexibility Act, the NMB certifies that these regulatory changes will not have a significant impact on small business entities. This rule will not have any significant impact on the quality of the human environment under the National Environmental Policy Act.

The NMB has determined that the Paperwork Reduction Act does not apply because this interim regulation does not contain any information collection requirements that require the approval of the Office of Management and Budget.

For the reasons stated in the preamble, the National Mediation Board amends 29 CFR parts 1203 and 1206 as set forth below:

On August 21, 2014, OSHA published a Federal Register document proposing to reject Arizona's residential construction fall protection statute enacted by Arizona's state legislature (formerly published as Arizona Revised Statute (A.R.S.) 23-492), and to reconsider the Arizona State Plan's final approval pursuant to 29 CFR 1953.6(e) and 29 CFR 1902.47 (79 FR 49465). OSHA based that proposal on a finding that Arizona's requirements for residential construction fall protection were not at least as effective as OSHA's federal standard, as required by the Occupational Safety and Health Act (29 U.S.C. 667(c)(2)).

On February 6, 2015, OSHA published a Federal Register document responding to comments received in response to its proposed rejection document, and announcing OSHA's final decision to reject the Arizona State Plan's residential construction fall protection statute (80 FR 6652). However, SB 1307 included a conditional repeal provision. Under this provision, if OSHA rejected the state statute and published that decision in the Federal Register pursuant to 29 CFR 1902.23, then A.R.S. 23-492 would be repealed by operation of law (SB 1307 Sec. 7). In response to this provision, OSHA deferred its decision on the simultaneously proposed action of reconsidering the State Plan's final approval, to allow for Arizona's repeal of the rejected statute to take effect, and to allow for Arizona's subsequent enforcement of a standard at least as effective as OSHA's standard.

Since that time, Arizona has adopted OSHA's residential construction fall protection standard, 29 CFR part 1926, subpart M. Federal OSHA has monitored this issue closely and finds that Arizona has also successfully implemented this standard. Accordingly, OSHA is withdrawing its proposal to reconsider the Arizona State Plan's final approval status.

Loren Sweatt, Acting Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this document under the following authorities: Section 18 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 667), Secretary of Labor's Order No. 1-2012 (77 FR 3912), and 29 CFR parts 1902 and 1953.

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

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to 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 Captain of the Port Sector Lake Michigan (COTP) has determined that potential safety hazards associated with this fireworks display pose a threat to vessel traffic on the Fox River and immediate action is needed to respond to those identified hazards. It is impracticable to publish an NPRM because this safety zone must be established by July 26, 2019 and there is not time for a sufficient comment period.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be contrary to the rule's objective of protecting against potential safety hazards associated with a fireworks display scheduled for July 26, 2019.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The COTP has determined that potential hazards associated with a fireworks display on July 26, 2019, will be a safety concern for anyone within a 300-foot radius of a vessel used to launch fireworks on the Fox River in Green Bay, WI. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone for the duration of the fireworks display.

This rule establishes a safety zone from 8 p.m. through 11 p.m. on July 26, 2019. The safety zone will cover all navigable waters of the Fox River in Green Bay, WI within 300 feet of a vessel used to launch fireworks at latitude 44°31′ 4″ N, longitude 088°1′ 1″ W. The duration of the zone is intended to protect personnel, vessels, and the marine environment for the duration of 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 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.

This regulatory action determination is based on size and duration of this safety zone. This safety zone will be enforced for all navigable waters of the Fox River within 300 feet of a vessel used to launch fireworks for no more than three hours on one day. Additionally, the COTP may consider, on a case-by-case basis, to allow vessels to enter this safety zone during the enforcement period. We anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. Also, the safety zone is designed to minimize its impact on navigable waters.

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 Directive 023-01 and Environmental Planning COMDTINST 5090.1 (series), 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 only three hours that will prohibit entry within 300 feet of a vessel being used to launch fireworks. It is categorically excluded from further review under paragraph L60(a) in Table 3-1 of U.S. Coast Guard Environmental Planning Implementing Procedures 5090.1. A Record of Environmental Consideration supporting this determination will be made available in the docket where indicated under ADDRESSES once it is completed.

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 is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to 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 event sponsor notified the Coast Guard with insufficient time to accommodate the comment period. Thus, delaying the effective date of this rule to wait for the comment period to run would be impracticable and contrary to the public interest because it would prevent the Captain of the Port Detroit from keeping the public safe from the hazards associated with a maritime fireworks displays.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Waiting for a 30-day effective period to run is impracticable and contrary to the public interest for the reasons discussed in the preceding paragraph.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Detroit (COTP) has determined that potential hazards associated with fireworks displays will be a safety concern for anyone within a 400 foot radius of the launch site. The likely combination of recreational vessels, darkness punctuated by bright flashes of light, and fireworks debris falling into the water presents risks of collisions which could result in serious injuries or fatalities. 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 that will be enforced from 9:15 p.m. until 10 p.m. on August 3, 2019. The safety zone will encompass all U.S. navigable waters of the Huron River within a 400 foot radius of the fireworks launch site located at position 41°23′32.5″ N 082°33′7.1″ W. All geographic coordinates are North American Datum of 1983 (NAD 83).

The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters during the fireworks display. Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port, Sector Detroit or his designated representative. The Captain of the Port, Sector Detroit or his designated representative may be contacted via VHF Channel 16.

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

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.

This regulatory action determination is based on is based on the size, location, and duration of the safety zone. Vessel traffic will be impacted in a small designated area of the Huron River in Huron, OH for a period of 45 minutes. The Coast Guard will issue Broadcast Notice to Mariners via VHF-FM Marine Channel 16 about the safety zone and the rule allows vessels to seek permission to enter the zone.

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 Directive 023-01 and Environmental Planning COMDTINST 5090.1 (series), 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 only 45 minutes that will prohibit entry within 400 foot radius of where the fireworks display will be conducted. It is categorically excluded from further review under paragraph L[60](a) in Table 3-1 of U.S. Coast Guard Environmental Planning Implementing Procedures 5090.1. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES .

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 in 33 CFR 165.T05-1011 (84 FR 4333, Feb. 15, 2019) for a fireworks display from 9:20 p.m. through 9:25 p.m. on August 4, 2019. There is no alternate date for this fireworks display event. The Coast Guard will enforce the temporary safety zone in 33 CFR 165.T05-1011 (84 FR 4333, Feb. 15, 2019) for a fireworks display from 7:30 p.m. through 7:45 p.m. on September 21, 2019. There is no alternate date for this fireworks display event. The Coast Guard will enforce the temporary safety zone in 33 CFR 165.T05-1011 for a fireworks display from 8 p.m. through 8:15 p.m. on December 7, 2019. There is no alternate date for this fireworks display event. These are the third, fourth and fifth of eight recurring fireworks displays held adjacent to The Wharf DC, Washington, DC, anticipated from January 12, 2019, through December 31, 2019. This action is being taken to provide for the safety of life on navigable waterways during the fireworks displays. Our regulation for this fireworks display, §  165.T05-1011, specifies the location of the regulated area for these temporary safety zones, which encompass portions of the Washington Channel, adjacent to The Wharf DC, Washington, DC. During the enforcement periods, as specified in §  165.T05-1011(c), persons and vessels may not enter the safety zones unless authorized by the Captain of the Port Sector Maryland-National Capital Region (COTP) or the COTP's designated representative. All vessels underway within the safety zones at the time they are activated are to depart the zones. The Coast Guard may be assisted by other federal, state, or local agencies in the enforcement of these safety zones.

This notice of enforcement is issued under authority of 33 CFR 165.T05-1011 and 5 U.S.C. 552 (a). In addition to this notice of enforcement in the Federal Register , the Coast Guard plans to provide notification of these enforcement periods via the Local Notice to Mariners and marine information broadcasts.

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

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to 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 it is impracticable. It is impracticable to publish an NPRM because we must establish this safety zone by August 31, 2019 and lack sufficient time to request comments and respond before the zone must be established.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be contrary to the public interest because immediate action is needed to respond to the potential safety hazards associated with the fireworks display.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Sector Upper Mississippi River (COTP) has determined that potential hazards associated with a fireworks display on August 31, 2019 will be a safety concern for anyone on the Missouri River between Mile Marker (MM) 28.2 and MM 28.8. This rule resulted from a sudden change in the date for the fireworks display from the date of the 4th of July weekend, published in 33 CFR 165.801, Table 2, line 17, for City of St. Charles/St. Charles Riverfest. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone before, during, and after the fireworks display, which has been rescheduled from the date listed in the table to August 31, 2019.

This rule establishes a safety zone from 8:30 p.m. through 10:30 p.m. on August 31, 2019. The safety zone will cover all navigable waters of the Missouri River between MM 28.2 and 28.8. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters before, during, and after an annual fireworks display. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. The COTP or a designated representative will inform the public of the enforcement date and times for this safety zone, as well as any emergent safety concerns that may delay the enforcement of the zone through Broadcast Notice to Mariners (BNM), Local Notices to Mariners (LNMs), and/or actual notice.

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 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.

This regulatory action determination is based on the size, duration and location of the temporary safety zone. This action involves an annually recurring fireworks display that is only changing the date due to recent flooding in the area and only impacts a half-mile stretch of the Missouri River for a short amount of time. All other details of this event remain as published in 33 CFR 165.801 Table 2, line 17, City of St. Charles/St. Charles Riverfest.

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 temporary 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 Directive 023-01 and Environmental Planning COMDTINST 5090.1 (series), 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 two hours that will prohibit entry on the Missouri River between MM 28.2 and MM 28.8. It is categorically excluded from further review under paragraph L60(d) in Table 3-1 of U.S. Coast Guard Environmental Planning Implementing Procedures 5090.1. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES .

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:

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

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2018-0157 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before September 24, 2019. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2018-0157, by one of the following methods:

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

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

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

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

In the Federal Register of May 18, 2018 (83 FR 23247) (FRL-9976-87), EPA issued a document pursuant to FFDCA section 408, 21 U.S.C. 346a, announcing the filing of a pesticide petition (PP IN-11113) by Ecolab Inc., 655 Lone Oak Drive, Eagan, MN 55121. The petition requested that 40 CFR 180.940(a) be amended by establishing an exemption from the requirement of a tolerance for residues of lactic acid (CAS Reg. No. 50-21-5) when used as an inert ingredient (acidifier) in pesticide formulations applied to food-contact surfaces in public eating places, dairy processing equipment, food-processing equipment and utensils at 10,000 parts per million (ppm). That document referenced a summary of the petition prepared by Ecolab Inc., the petitioner, which is available in the docket, http://www.regulations.gov. There were no comments received in response to the notice of filing.

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

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

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

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

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

Lactic acid is practically non-toxic to mammals, apart from irritation stemming from its low pH. It is an endogenous compound produced in the mammalian system. L-lactic acid (lactate) is a product of fermentation in the muscles produced from pyruvate via lactate dehydrogenase. Lactate is also generated from glucose under aerobic conditions in some tissues and cell types. L-Lactic acid is normally found in the blood and interstitial fluid of humans at a level of 10 mg/dL (EPA 2009). In addition, L-lactic acid occurs naturally in several foods, primarily found in fermented milk products such as sour milk, cheese, buttermilk and yogurt. It also occurs naturally in meats, fruits, tomato juice, beer, wine, molasses, blood and muscles of animals, and in the soil.

The available acute toxicity studies indicate that lactic acid is not acutely toxic via the oral or inhalation route of exposure. Because the test substance (80% lactic acid) has a very low pH (<1), L-lactic acid is a severe dermal irritant in rabbits but not a skin sensitizer at high concentrations ( e.g., 80%).

Although some minor effects were observed in repeat dosing studies in rats ( e.g., decrease in body weight gain or organ weight gain), no significant systemic toxicity was identified for lactic acid, even at dose levels greater than 1,000 mg/kg/day. In addition, there was no indication of developmental toxicity in a developmental toxicity study in mice. Furthermore, none of the available data indicate that lactic acid is neurotoxic, immunotoxic, or carcinogenic.

Based on a review of 15 mutagenicity and clastogenicity studies on lactic acid and the ammonium, calcium, and sodium salts of lactic acid, EPA notes that the results were negative for all studies and there is no evidence that lactic acid is genotoxic.

In an in vitro chromosomal aberration study, some pseudo-positive reactions were observed at low pH.

Although the toxicity database for lactic acid is limited, the toxicity profile indicates no significant systemic toxicity even at high dose levels. Since no toxicity is observed, an endpoint of concern for risk assessment purposes was not identified.

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to lactic acid, EPA considered exposure under the proposed exemption from the requirement of a tolerance. EPA assessed dietary exposures from lactic acid in food as follows:

Dietary exposure to lactic acid may occur following ingestion of foods containing residues of lactic acid from its use as an acidifier in pesticide formulations applied to food-contact surfaces as well as from other pesticidal uses that are already approved that may result in residues o treated crops. In addition, lactic acid occurs naturally in several foods and in the soil. However, a quantitative dietary exposure assessment was not conducted since a toxicological endpoint for risk assessment was not identified.

2. Dietary exposure from drinking water. Since a hazard endpoint of concern was not identified for the acute and chronic dietary assessment, a quantitative dietary exposure risk assessment for drinking water was not conducted, although exposures may be expected from use on food crops.

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

Lactic acid may be used in pesticide products and non-pesticide products that may be used in and around the home. Based on the lack of a hazard endpoint of concern above, a quantitative residential exposure assessment for lactic acid was not conducted.

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

EPA has not found lactic acid to share a common mechanism of toxicity with any other substances, and lactic acid does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that lactic acid does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at http://www.epa.gov/pesticides/cumulative.

Based on the lack of threshold effects, EPA has not identified any toxicological endpoints of concern and is conducting a qualitative assessment of lactic acid. That qualitative assessment does not use safety factors for assessing risk, and no additional safety factor is needed for assessing risk to infants and children. Based on an assessment of lactic acid, EPA has concluded that there are no toxicological endpoints of concern for the U.S. population, including infants and children.

Because no toxicological endpoints of concern were identified, EPA concludes that aggregate exposure to residues of lactic acid will not pose a risk to the U.S. population, including infants and children, and that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to lactic acid residues.

An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation.

Therefore, an exemption from the requirement of a tolerance is established under 40 CFR 180.940(a) for lactic acid (CAS Reg. No. 50-21-5) when used as an inert ingredient (acidifier) in pesticide formulations applied to food-contact surfaces in public eating places, dairy processing equipment, food-processing equipment and utensils at 10,000 ppm.

This action establishes an exemption from the requirement of a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), nor is it considered a regulatory action under Executive Order 13771, entitled “Reducing Regulations and Controlling Regulatory Costs” (82 FR 9339, February 3, 2017). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq. ), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

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

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

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

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

Therefore, 40 CFR chapter I is amended as follows:

(a) * * *

I. Approval of Revisions to Oregon's Underground Storage Tank Program A. Why are revisions to State programs necessary?

States which have received final approval from the EPA under RCRA Section 9004(b) of RCRA, 42 U.S.C. 6991c(b), must maintain an underground storage tank program that is equivalent to, consistent with, and no less stringent than the Federal underground storage tank program. When the EPA makes revisions to the regulations that govern the UST program, states must revise their programs to comply with the updated regulations and submit these revisions to the EPA for approval. Most commonly, states must change their programs because of changes to the EPA's regulations in 40 Code of Federal Regulations (CFR) part 280. States can also initiate changes on their own to their underground storage tank program and these changes must then be approved by the EPA.

On October 19, 2018, in accordance with 40 CFR 281.51(a), Oregon submitted a complete program revision application seeking the EPA approval for its UST program revisions (State Application). Oregon's revisions correspond to the EPA final rule published on July 15, 2015 (80 FR 41566), which revised the 1988 UST regulations and the 1988 State program approval (SPA) regulations (2015 Federal Revisions). As required by 40 CFR 281.20, the State Application contains the following: A transmittal letter from the Governor requesting approval, a description of the program and operating procedures, a demonstration of the State's procedures to ensure adequate enforcement, a Memorandum of Agreement outlining the roles and responsibilities of the EPA and the implementing agency, a statement of certification from the Attorney General, and copies of all relevant state statutes and regulations. We have reviewed the State Application and determined that the revisions to Oregon's UST program are equivalent to, consistent with, and no less stringent than the corresponding Federal requirements in subpart C of 40 CFR part 281, and that the Oregon program provides for adequate enforcement of compliance with these requirements (40 CFR 281.11(b)). Therefore, the EPA grants Oregon final approval to operate its UST program with the changes described in the program revision application, and as outlined below in Section I.G of this document.

This action does not impose additional requirements on the regulated community because the regulations being approved by this rule are already in effect in the State of Oregon, and are not changed by this action. This action merely approves the existing State regulations as meeting the Federal requirements and renders them federally enforceable.

The EPA is publishing this direct final rule without a prior proposed rule because we view this as a noncontroversial action and we anticipate no adverse comment. Oregon did not receive any comments during its comment period when the rules and regulations being considered in this document were proposed at the State level.

Along with this direct final rule, the EPA is publishing a separate document in the “Proposed Rules” section of this Federal Register that serves as the proposal to approve the State's UST program revisions, and provides an opportunity for public comment. If EPA receives comments that oppose this approval, then the EPA will withdraw this direct final rule by publishing a document in the Federal Register before it becomes effective. The EPA will base any further decision on approval of the State Application after considering all comments received during the comment period. The EPA will then address all public comments in a later final rule. You may not have another opportunity to comment. If you want to comment on this approval, then you must do so at this time.

On September 16, 2011, the EPA finalized a rule approving the UST program that Oregon proposed to administer in lieu of the Federal UST program. On April 30, 2012, the EPA codified the provisions of the approved Oregon program that are part of the underground storage tank program under Subtitle I of RCRA, and therefore are subject to the EPA's inspection and enforcement authorities under RCRA Sections 9005 and 9006, 42 U.S.C. 6991d and 6991e, and other applicable statutory and regulatory provisions.

In order to be approved, each state program application must meet the general requirements in 40 CFR 281.11, and specific requirements in 40 CFR part 281, subpart B (Components of a Program Application); subpart C (Criteria for No Less Stringent); and subpart D (Adequate Enforcement of Compliance). This is also true for proposed revisions to approved state programs.

As more fully described below, the State has made the changes to its approved UST program to reflect the 2015 Federal Revisions. The EPA is approving the State's changes because they are equivalent to, consistent with, and no less stringent than the Federal UST program and because the EPA has confirmed that the Oregon UST program will continue to provide for adequate enforcement of compliance with these requirements as described in 40 CFR 281.11(b) and part 281, subpart D, after this approval.

The Oregon Department of Environmental Quality (DEQ) is the lead implementing agency for the UST program in Oregon, except in Indian country.

The DEQ continues to have broad statutory authority to regulate the installation, operation, maintenance, and closure of USTs, as well as UST releases under Oregon Statutes (2017), Chapter 466, Hazardous Waste and Hazardous Materials II, Sections 605-995. The Oregon UST Program gets its enforcement authority from the powers and duties of the DEQ found in Chapter 466, Section 015. Under Chapter 466, Sections 765(3), 765(5), and 805(a) the DEQ is authorized to require an owner to furnish records, conduct monitoring or testing, and provide access to tanks. The DEQ is authorized to issue, modify, suspend, revoke or refuse to renew a permit under Chapter 466, Section 775. Penalties for non-compliance may be assessed under Chapter 466, Section 837(1).

Specific authorities to regulate the installation, operation, maintenance, and closure of USTs, as well as UST releases are found under Oregon Administrative Rule (OAR), as amended effective June 1, 2018, Chapter 340, Division 150, Underground Storage Tank Rules; DEQ may prohibit delivery to any UST identified by DEQ as ineligible for delivery under OAR 340-150-0020(1), 0080, 0150, 0152, and 0163; reporting and recordkeeping requirements are found under OAR 340-150-0135. Procedures for receipt, evaluation, retention and investigation of required records and reports are under OAR 340-150-0135. The aforementioned statutory sections and regulations satisfy the requirements of 40 CFR 281.40 and 281.41.

Through a Memorandum of Agreement between the State of Oregon and the EPA, effective September 24, 2019, the State maintains procedures for receiving and ensuring proper consideration of information about violations submitted by the public. The State agrees to comply with public participation provisions contained in 40 CFR 281.42 including the provision that the State will not oppose intervention under Oregon Rules of Civil Procedure 33C, its analogue to Federal Rule 24(a)(2), on the grounds that the applicant's interest is adequately represented by the State. Oregon has met the public participation requirements found in 40 CFR 281.42.

To qualify for final approval, revisions to a state's program must be “equivalent to, consistent with, and no less stringent” than the 2015 Federal Revisions. In the 2015 Federal Revisions the EPA addressed UST systems deferred in the 1988 UST regulations, and added, among other things, new operation and maintenance requirements; secondary containment requirements for new and replaced tanks and piping; operator training requirements; and a requirement to ensure UST system compatibility before storing certain biofuel blends. In addition, the EPA removed past deferrals for emergency generator tanks, field constructed tanks, and airport hydrant systems. The EPA analyzes revisions to approved state programs pursuant to the criteria found in 40 CFR 281.30 through 281.39.

The DEQ has revised its regulations to help ensure that the State's UST program revisions are equivalent to, consistent with, and no less stringent than the 2015 Federal Revisions.

Title 40 CFR 281.39 describes the state operator training requirements that must be met to be considered equivalent to, consistent with, and no less stringent than Federal requirements. Oregon did not incorporate by reference Federal requirements for operator training, and has promulgated and is implementing its own operator training provisions under OAR 340-150-0200, 0210, and 0315. After a thorough review, the EPA has determined that Oregon's operator training requirements are equivalent to, consistent with, and no less stringent than federal requirements.

As part of the State Application the Oregon Attorney General certified that the State revisions meet the requirements “equivalent to, consistent with, and no less stringent” criteria in 40 CFR 281.30 through 281.39. The EPA is relying on this certification in addition to the analysis submitted by the State in making our determination.

Where an approved state program has a greater scope of coverage than required by Federal law, the additional coverage is not part of the federally-approved program and is not federally enforceable (40 CFR 281.12(a)(3)(ii)). The following statutory and regulatory requirements are considered broader in coverage than the Federal program as these State-only regulations are not required by Federal regulation and are implemented by the State in addition to the federally approved program:

Heating oil tanks are regulated under OAR Chapter 340 Division 177. DEQ's requirement to report and clean up releases from underground heating oil tanks (HOTs) is broader in scope. Additionally, DEQ encourages voluntary decommissioning of HOTs and licenses UST and HOT service providers and supervisors. These programs are also broader in scope than the federal program.

Tank owners who install, decommission or test their own tanks are required to take the same proficiency examination as UST supervisors to ensure that they have the technical knowledge to do the work safely and correctly.

The universe of “suspected releases that trigger reporting, investigation and confirmation” under OAR 340-150-0500 may be broader than the Federal rule, including discovery of a release into a secondary containment area and monitoring results or alarms from release detection systems.

The State has provided for release response and corrective action in its remedial action rules under OAR Chapter 340, Division 122. As a general matter, the universe of regulated persons is broader under the state rules than under the federal rules. The obligations in Division 122 are imposed upon “the responsible person,” a term that appears to encompass a broader class of persons than the term “owner and operator”.

The State standard for system cleaning upon permanent closure is the same as that found at 40 CFR 280.71(b), except that the State requirements apply to the UST system as a whole, whereas the Federal requirements apply to tanks. If the permittee proposes to close the UST in place and fill it, then the permittee must submit a site assessment plan. Closure cannot begin until the plan is approved by the DEQ.

The operation and maintenance of corrosion protection systems apply to all USTs and piping. The Federal rules apply only to steel UST systems with corrosion protection.

Where an approved state program includes requirements that are considered more stringent than required by Federal law, the more stringent requirements become part of the federally approved program. (40 CFR 281.12(a)(3)(ii)).

The following statutory and regulatory requirements are considered more stringent than the Federal program, and on approval, they become part of the federally approved program and are federally enforceable:

The State rules do not allow the use of metal tanks or piping without corrosion protection as allowed in 40 CFR 280.20(a)(4) and (b)(3), which states that no corrosion protection is required for metal tanks and piping installed at a site that have been determined by a corrosion expert not to be corrosive enough to cause either the tank or the piping to have a release due to corrosion during its operating life. Because the State does not allow the alternative to corrosion protection found in 40 CFR 280.20(a)(4), the State rules do not have a recordkeeping requirement that corresponds with that in 40 CFR 280.34(b)(1). OAR 340-150-0320.

The State rules do not allow for the use of alternative types of tanks and piping determined to be equally protective in preventing releases as those otherwise identified in the rules, as allowed in 40 CFR 280.20(a)(5) and (b)(4).

The State rules allow only one mode of certifying the installation. The certification of compliance must be signed by the owner, permittee and a service provider licensed by the department, and must certify that the system has been installed in compliance with the required methods and standards. OAR 340-150-0160.

The State rules require used USTs that have been removed from the ground to be certified by a UST manufacturer in writing before being reused. OAR 340-150-0302(2).

The owner and permittee must notify DEQ at least 30 days before beginning installation of a UST system. (DEQ may allow a shorter period on a case-by-case basis) OAR 340-150-0160(2).

The owner and permittee must notify DEQ of the confirmed time and date of the installation of the UST system at least three working days before beginning the installation. DEQ may also request additional notifications. OAR 340-150-0160(3).

DEQ's installation checklist required upon completion of the installation requires certification of compliance with required installation standards and methods, and the standards for spill and overfill prevention, corrosion protection release detection and financial responsibility as is required by 40 CFR 280.22. DEQ's installation checklist also requires the owner and permittee to provide substantially more information than appears to be required by 40 CFR 280.22(e) and (f).

Repaired tanks and piping must be tested after completion of the repairs and before operation. OAR 340-150-0350(3)(a) and (4). The Federal rules allow an UST system to return to service providing testing is conducted within 30 days of repair.

Any test failures must be reported to DEQ. OAR 340-150-0163(1)(c) and (e); OAR 340-150-0325(4); OAR 340-150-0350(3)(a) and (4).

Repaired tanks, except tanks repaired by lining, must be certified as meeting the performance standards by the original manufacturer or, if unavailable, another manufacturer of the same type of tank. OAR-340-0350.

The State requires an investigation of the magnitude and extent of soil and groundwater contamination if not otherwise fully identified in the course of the initial site characterization. OAR 340-122-0240. This requirement is more stringent than those under 40 CFR 280.65, to the extent that the additional investigation in 40 CFR 280.65 is triggered only if groundwater wells have been affected, free product is found to need recovery, soils may be in contact with groundwater or the implementing agency requests an investigation.

The permittee must perform a site assessment before permanent closure or change in service. OAR 340-150-0168 and OAR 340-150-0180. The State requirements are more stringent in that the owner or permittee, which is using groundwater or vapor monitoring in accordance with state rules, cannot satisfy the requirements of the site assessment by relying on their release detection method in place at the time of closure as allowed by 40 CFR 280.72(a).

The rules in OAR Division 150 apply to all UST systems taken out of operation between January 1, 1974 and May 1, 1988, if not emptied and cleaned as required by OAR 340-150-0168(4), and to all UST systems taken out of operation before January 1, 1974, if not empty. OAR 340-150-0006(2). This requirement is more stringent than the Federal standard in 40 CFR 280.73, which states that the owner and operator of an UST system permanently closed before December 22, 1988, must assess the excavation zone and close the UST system in accordance with the subpart if releases from the UST may, in the judgment of the implementing agency, pose a current or potential threat to human health and the environment.

The State rules do not include the options for overfill prevention equipment found in 40 CFR 280.20(c)(1)(ii)(C) and (c)(2)(i). In 40 CFR 280.20(c)(1)(ii)(C), Federal rules allow an overfill device that can restrict flow 30 minutes prior to overfilling, alert the transfer operator with a high-level alarm one minute before overfilling, or automatically shut off flow into the tank so that none of the fittings located on top of the tank are exposed to product due to overfilling. In 40 CFR 280.20(c)(2)(i), Federal rules state that owners and operators are not required to use the spill and overfill prevention equipment specified in paragraph (c)(1) of the section if alternative equipment is used that is determined by the implementing agency to be no less protective of human health and the environment than the equipment specified in 40 CFR 280.20(c)(1)(i) or (ii).

The EPA's approval of Oregon's Program does not extend to Indian country as defined in 18 U.S.C. 1151. Indian country generally includes lands within the exterior boundaries of the following Indian reservations located within Oregon: Burns Paiute, Grande Ronde, Klamath, Siletz, Umatilla and Warm Springs Reservations; any land held in trust by the United States for an Indian tribe; and any other areas that are “Indian country” within the meaning of 18 U.S.C. 1151. Any lands removed from an Indian reservation status by Federal court action are not considered reservation lands even if located within the exterior boundaries of an Indian reservation. The EPA will retain responsibilities under RCRA for underground storage tanks in Indian country. Therefore, this action has no effect in Indian country. See 40 CFR 281.12(a)(2).

Codification is the process of placing a state's statutes and regulations that comprise the state's approved UST program into the CFR. Section 9004(b) of RCRA, as amended, allows the EPA to approve State UST programs to operate in lieu of the Federal program. The EPA codifies its authorization of state programs in 40 CFR part 282 and incorporates by reference state regulations that the EPA will enforce under Sections 9005 and 9006 of RCRA and any other applicable statutory provisions. The incorporation by reference of state authorized programs in the CFR should substantially enhance the public's ability to discern the current status of the approved state program and state requirements that can be federally enforced. This effort provides clear notice to the public of the scope of the approved program in each state.

The EPA incorporated by reference and codified Oregon's then-approved UST program in 40 CFR 282.87, effective June 29, 2012 (77 FR 25368, April 30, 2012). Through this action, the EPA is incorporating by reference and codifying Oregon's State program in 40 CFR 282.87 to include the approved revisions.

In this rule, we are finalizing the regulatory text that incorporates by reference the federally authorized Oregon UST Program. In accordance with the requirements of 1 CFR 51.5, we are finalizing the incorporation by reference of the Oregon rules described in the amendments to 40 CFR part 282 set forth below. The EPA has made, and will continue to make, these documents generally available through www.regulations.gov and at the EPA Region 10 office (see the ADDRESSES section of this preamble for more information).

One purpose of this Federal Register document is to codify Oregon's approved UST program. The codification reflects the State program that would be in effect at the time the EPA's approved revisions to the Oregon UST program addressed in this direct final rule become final. If, however, the EPA receives substantive comment on the rule then this codification will not take effect, and the State rules that are approved after the EPA considers public comment will be codified instead. By codifying the approved Oregon program and by amending the Code of Federal Regulations (CFR), the public will more easily be able to discern the status of the federally-approved requirements of the Oregon program.

The EPA is incorporating by reference the Oregon approved UST program in 40 CFR 282.87. Section 282.87(d)(1)(i)(A) and (B) incorporate by reference for enforcement purposes the State's relevant statutes and regulations. Section 282.87 also references the Attorney General's Statement, Demonstration of Adequate Enforcement Procedures, the Program Description, and the Memorandum of Agreement, which are approved as part of the UST program under Subtitle I of RCRA.

The EPA retains the authority under Sections 9003(h), 9005 and 9006 of Subtitle I of RCRA, 42 U.S.C. 6991b(h), 6991d and 6991e, and other applicable statutory and regulatory provisions to undertake corrective action, inspections, and enforcement actions, and to issue orders in approved states. If the EPA determines it will take such actions in Oregon, the EPA will rely on Federal sanctions, Federal inspection authorities, and other Federal procedures rather than the state analogs. Therefore, though the EPA has approved the State procedures listed in 40 CFR 282.87(d)(1)(i), the EPA is not incorporating by reference Oregon's procedural and enforcement authorities.

The public also needs to be aware that some provisions of the State's UST program are not part of the federally approved State program. Such provisions are not part of the RCRA Subtitle I program because they are “broader in coverage” than Subtitle I of RCRA. Title 40 CFR 281.12(a)(3)(ii) states that where an approved State program has provisions that are broader in coverage than the Federal program, those provisions are not a part of the federally approved program. As a result, State provisions which are “broader in coverage” than the Federal program are not incorporated by reference for purposes of enforcement in part 282. Title 40 CFR 282.87(d)(1)(iii) lists for reference and clarity the Oregon statutory and regulatory provisions which are “broader in coverage” than the Federal program and which are not, therefore, part of the approved program being codified in this rule. Provisions that are “broader in coverage” cannot be enforced by EPA; the State, however, will continue to implement and enforce such provisions under State law.

This action only applies to Oregon's UST Program requirements pursuant to RCRA Section 9004 and imposes no requirements other than those imposed by State law. It complies with applicable EOs and statutory provisions as follows:

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

This action is not an Executive Order 13771 (82 FR 9339, February 3, 2017) regulatory action because actions such as this final approval of Oregon's revised underground storage tank program under RCRA are exempted under Executive Order 12866. Accordingly, I certify that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ).

Because this action approves and codifies pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538). For the same reason, this action also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

This action will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, Aug. 10, 1999), because it merely approves and codifies state requirements as part of the State RCRA Underground Storage Tank Program without altering the relationship or the distribution of power and responsibilities established by RCRA.

This action also is not subject to Executive Order 13045 (62 FR 19885, Apr. 23, 1997), because it is not economically significant, as defined in Executive Order 12866, and because the EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children.

This rule is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001) because it is not a “significant regulatory action” as defined under Executive Order 12866.

Under RCRA Section 9004(b), the EPA grants a state's application for approval as long as the state meets the criteria required by RCRA. It would thus be inconsistent with applicable law for the EPA, when it reviews a state approval application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.

As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, the EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct.

The EPA has complied with Executive Order 12630 (53 FR 8859, Mar. 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order.

This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). “Burden” is defined at 5 CFR 1320.3(b).

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

The Congressional Review Act, 5 U.S.C. 801-808, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this document and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). However, this action will be effective September 24, 2019 because it is a direct final rule.

For the reasons set forth in the preamble, EPA is amending 40 CFR part 282 as follows:

Table of Contents A. Executive Summary B. Background 1. CAFE Program 2. Civil Penalties Inflationary Adjustment Act Improvements Act of 2015 3. NHTSA's Actions to Date Regarding CAFE Civil Penalties a. Interim Final Rule b. Final Rule c. Initial Reconsideration and Request for Comments d. Notice of Proposed Rulemaking C. Overview of the Comments D. Response to the Comments 1. NHTSA's Reconsideration Authority 2. Applicability of the 2015 Act 3. Harmonizing the 2015 Act and EPCA 4. “Negative Economic Impact” a. EPCA Factors b. Other Economic Considerations 5. $10 Cap E. Rulemaking Analyses and Notices 1. Executive Order 12866, Executive Order 13563, and DOT Regulatory Policies and Procedures 2. Regulatory Flexibility Act 3. Executive Order 13132 (Federalism) 4. Unfunded Mandates Reform Act of 1995 5. National Environmental Policy Act 6. Executive Order 12778 (Civil Justice Reform) 7. Paperwork Reduction Act 8. Privacy Act 9. Executive Order 13771 A. Executive Summary

As explained in the proposed rule (83 FR 13904 (April 2, 2018)), NHTSA has almost forty years of experience in implementing the corporate average fuel economy (CAFE) program and its civil penalty component. This includes oversight and administration of the program's operation, how the automobile manufacturers respond to CAFE standards and increases, and the role of civil penalties in achieving the CAFE program's objectives. The CAFE civil penalty provisions 49 U.S.C. 32912(b) and (c), established by EPCA, are complex, containing statutory requirements that must be met if the penalty amount is to be increased, as well as a statutory cap of $10 on the maximum penalty amount, among other provisions, that distinguish it from ordinary civil penalty provisions, such as the general penalty for CAFE violations found in 49 U.S.C. 32912(a).

After the new administration took office and upon further consideration of the issues, NHTSA determined that it was appropriate and necessary to reconsider the applicability of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Inflation Adjustment Act or 2015 Act) to the CAFE civil penalty provision found in EPCA. In reconsidering the CAFE civil penalty rule and the applicability of the 2015 Act to the statutory provision, NHTSA had two objectives: First, to determine whether the CAFE civil penalty rate was the kind of penalty to which the 2015 Act applied, and second, if it did apply, whether increasing the civil penalty rate for the CAFE provision will have a negative economic impact. NHTSA has carefully considered these objectives and comments received in reconsidering the CAFE civil penalty statute that NHTSA administers and the application of the 2015 Act to it. 1

As a result of this review, including consideration of all the comments received on its proposed rule, NHTSA has reconsidered its earlier decisions that accepted applicability of the 2015 Act and its predecessors to the CAFE civil penalty provision in 49 U.S.C. 32912(b). 2 Accordingly, NHTSA is finalizing its determination that the CAFE civil penalty rate is not a “civil monetary penalty” that must be adjusted for inflation under the 2015 Act. Prior to the proposed rule, NHTSA's Federal Register notifications on its inflation adjustments under the 2015 Act did not consider whether the CAFE civil penalty rate fit the definition of a “civil monetary penalty” subject to adjustment under the 2015 Act, instead proceeding—without analysis—as if the 2015 Act applied to the CAFE civil penalty rate. After taking the opportunity to reconsider this matter and fully analyze the issue and consider the comments received on its proposal, NHTSA concludes that the CAFE civil penalty rate is not covered by the 2015 Act.

NHTSA is finalizing its determination that civil penalties assessed for CAFE violations under Section 32912(b) are not a “penalty, fine, or other sanction that” is either “a maximum amount” or “a specific monetary amount.”  3 As explained in the proposed rule, the civil penalties under consideration here are part of a complicated market-based enforcement mechanism. Any potential civil penalties for failing to satisfy fuel economy requirements, unlike other civil penalties, are not determined until the conclusion of a complex formula, credit-earning arrangement, and credit transfer and trading program. In fact, after NHTSA determines there is a violation, the ultimate penalty assessed is based on the noncompliant manufacturer's decision, not NHTSA's, on whether and how to acquire and apply any credits that may be available to the manufacturer, and on the decisions of other manufacturers to earn and sell credits to a potentially liable manufacturer. 4 Manufacturers can also claim future credits as a means of meeting their current liability based upon projected credits to be earned within three subsequent model years. The amount that a manufacturer might actually pay under the CAFE civil penalty statute is dependent upon a fluid, multi-year process, involving credit trading with other manufacturers at unknown prices and unverifiable credits to be earned in the future. In other words, what the noncompliant manufacturer pays is much more the function of market forces, trading of credits, and manufacturers' projections of future performance, than it is just the application of the CAFE penalty rate.

Moreover, after consideration of comments, NHTSA concludes that Congress did not intend for the 2015 Act to apply to this specialized civil penalty rate, which has longstanding, strict procedures previously enacted by Congress that limit NHTSA's ability to increase the rate. Congress specifically contemplated that increases to the CAFE civil penalty rate for manufacturer non-compliance with CAFE standards may be appropriate and necessary and included a mechanism in the statute for such increases. Critically, this mechanism requires the Secretary of Transportation to determine specifically that any such increase will not lead to certain specific negative economic effects. In addition, Congress explicitly limited any such increase to $10 per tenth of a mile per gallon. 5 These restrictions have been in place since the statute was amended in 1978. Though Congress later amended the CAFE civil penalty provision in 2007, Congress left in place unaltered both the mechanism for increases and the upper limit of an increased civil penalty under the statute. NHTSA's determination regarding the applicability of the 2015 Act to the EPCA CAFE civil penalty provision is also confirmed by the Office of Management and Budget (OMB), the office directed by Congress to issue guidance on the implementation of the 2015 Act. OMB's views regarding the applicability of the 2015 Act to the EPCA CAFE civil penalty provision are set forth in a comprehensive opinion included in the docket for this final rule, in which OMB concurs with NHTSA's assessment that the 2015 Act does not apply to the CAFE civil penalty rate. 6 OMB supported its conclusion by noting first, that it was not aware of any other penalty scheme with the unique features of the CAFE civil penalty scheme, and also “[i]n light of (1) EPCA's distinction between the penalty rate and the penalty itself, (2) the incompatibility of the structure of the CAFE penalty scheme and the 2015 Act, and (3) the inconsistent treatment of the CAFE penalty rate under inflation adjustment schemes over time.” These factors, which OMB found supportive of NHTSA's conclusion that the 2015 Act does not apply to the CAFE civil penalty rate, are discussed throughout this document.

In addition to reconsidering the application of the 2015 Act to the EPCA CAFE civil penalty provision, NHTSA has reconsidered its decisions in the July 2016 interim final rule and December 2016 final rule to increase the CAFE civil penalty rate and, as a result, is retaining the current civil penalty rate applicable to 49 U.S.C. 32912(b) of $5.50 per tenth of a mile per gallon for automobile manufacturers that do not meet applicable CAFE standards and are unable to offset such a deficit with compliance credits, rather than increasing the rate to $14 in model year 2019.

Even if the 2015 Act is applied to the CAFE civil penalty rate, NHTSA has determined that the rate should remain the same in order to comply with EPCA, which must be read harmoniously with the 2015 Act. The 2015 Act confers discretion to the head of each agency to adjust the amount of a civil monetary penalty by less than the amount otherwise required for the initial adjustment, with the concurrence of the Director of the Office of Management and Budget, upon determining that doing so would have a “negative economic impact.” In EPCA, Congress previously identified specific factors that NHTSA is required to consider before making a determination about the “impact on the economy” as a prerequisite to increasing the applicable civil penalty rate. NHTSA believes that these statutory criteria are appropriate for determining whether an increase in the CAFE civil penalty rate would have a “negative economic impact” for purposes of the 2015 Act. Under EPCA, NHTSA faces a heavy burden to demonstrate that increasing the civil penalty rate “will not have a substantial deleterious impact on the economy of the United States, a State, or a region of a State.” Specifically, in order to establish that the increase would not have that “substantial deleterious impact,” NHTSA would need to affirmatively determine that it is likely that the increase would not cause a significant increase in unemployment in a State or a region of a State; adversely affect competition; or cause a significant increase in automobile imports. In light of those statutory factors—and the absence of persuasive evidence to support making the EPCA findings—NHTSA concludes that increasing the CAFE civil penalty rate would have a negative economic impact. Thus, NHTSA is not adjusting the rate under the 2015 Act, even if it applied.

Even if EPCA's statutory factors for increasing civil penalties are not applied, NHTSA has determined, after consideration of comments, that the $14 penalty will lead to a negative economic impact that merits leaving the CAFE civil penalty rate at $5.50. Based on available information, including information provided by commenters, the effect of applying the 2015 Act to the CAFE civil penalty would potentially drastically increase manufacturers' costs of compliance. OMB has concurred with NHTSA's determination that increasing the CAFE civil penalty rate by the otherwise required amount will have a negative economic impact. 7

In summary, NHTSA concludes that:

• The 2015 Act does not apply to the CAFE civil penalty rate, so no rate increase is permitted, except pursuant to the scheme established in EPCA;

• Even if the 2015 Act did apply to the CAFE civil penalty rate, the 2015 Act must be read in conjunction with EPCA, and considering the EPCA factors, increasing the CAFE penalty rate to $14 would have a “negative economic impact”; and

• Even if the EPCA factors did not apply, increasing the CAFE civil penalty rate to $14 would still have a “negative economic impact.”

In EPCA, Congress also imposed a cap of $10 on the CAFE civil penalty rate. NHTSA has determined that this statutory cap also does not meet the definition of a “civil monetary penalty” that requires adjustment under the 2015 Act. OMB agrees with this assessment. 9 Thus, even if the CAFE civil penalty rate is a “civil monetary penalty” under the 2015 Act and regardless of whether increasing it would have a “negative economic impact,” NHTSA has determined that any increase would be statutorily capped by EPCA at $10.

The general penalty in 49 U.S.C. 32912(a) for other violations of EPCA, as amended, promulgated in 49 CFR 578.6(h)(1), is subject to additional inflationary adjustments for 2017, 2018, and 2019. In this rule, NHTSA is finalizing the 2017, 2018, and 2019 inflationary adjustments to this general penalty amount.

NHTSA sets  10 and enforces  11 corporate average fuel economy (CAFE) standards for the United States light-duty vehicle fleet, and in doing so, assesses civil penalties against vehicle manufacturers that fall short of the standards and are unable to make up the shortfall with credits. 12 The civil penalty amount for CAFE non-compliance was originally set by statute in 1975, and since 1997, has included a rate of $5.50 per each tenth of a mile per gallon (0.1) that a manufacturer's fleet average CAFE level falls short of the applicable standard. This shortfall amount is then multiplied by the number of vehicles in that manufacturer's fleet. 13 The basic equation for calculating a manufacturer's civil penalty amount before accounting for credits, is as follows:

Automakers have paid more than $890 million in CAFE civil penalties, up to and including model year (MY) 2014 vehicles. 14 On top of the costs of paying these civil penalties, manufacturers have also spent additional money towards generating overcompliance credits and purchasing credits from other manufacturers. Starting with the model year 2011, provisions in the CAFE program provided for credit transfers among a manufacturer's various fleets. Commencing with that model year, the law also provided for trading between vehicle manufacturers, which has allowed vehicle manufacturers the opportunity to acquire credits from competitors rather than paying civil penalties for non-compliance. Manufacturers are required to notify NHTSA of the volumes of credits traded or sold, but the agency does not receive any information regarding total cost paid or cost per credit. Thus, while NHTSA is not aware of the amount of money manufacturers spend on generating overcompliance credits or purchasing credits from other manufacturers, NHTSA believes it is likely that credit generation and credit purchases involve significant expenditures. Moreover, NHTSA expects that an increase in the penalty rate, which would apply to all manufacturers, would result in an increase in such expenditures. 15 Because of expected shortfalls in CAFE compliance in current and upcoming model years, the agency currently anticipates many manufacturers will face the possibility of larger expenditures on CAFE penalties or increased costs to acquire credits over the next several years than at present. 16

NHTSA has long had authority under the Energy Policy and Conservation Act (EPCA) of 1975, Public Law 94-163, 508, 89 Stat. 912 (1975), to raise the amount of the penalty for CAFE shortfalls if it makes certain findings, 17 as well as the authority to compromise and remit such penalties under certain circumstances. 18 Recognizing the economic harm that increases in CAFE civil penalties could have on the automobile industry and the economy as a whole, Congress capped any increase in the original statutory penalty rate at $10 per tenth of a mile per gallon. Further—and significantly—Congress has forbidden NHTSA from increasing the CAFE civil penalty rate under EPCA unless NHTSA concludes through rulemaking that the increase in the penalty rate both (1) will result in, or substantially further, substantial energy conservation for automobiles in model years in which the increased penalty may be imposed, and (2) will not have a substantial deleterious impact on the economy of the United States, a State, or a region of the State. A finding of “no substantial deleterious impact” may only be made if NHTSA determines that it is likely that the increase in the penalty (A) will not cause a significant increase in unemployment in a State or a region of a State, (B) adversely affect competition, or (C) cause a significant increase in automobile imports. Nowhere does EPCA define “substantial” or “significant” in the context of this provision.

The authority to compromise and remit penalties is extremely limited and must be applied on a case-by-case basis. If NHTSA seeks to compromise or remit penalties for a given manufacturer, a rulemaking is not necessary, but the amount of a penalty may be compromised or remitted only to the extent (1) necessary to prevent a manufacturer's insolvency or bankruptcy, (2) the manufacturer shows that the violation was caused by an act of God, a strike, or a fire, or (3) the Federal Trade Commission certifies that a reduction in the penalty is necessary to prevent a substantial lessening of competition. NHTSA has never previously attempted to undertake this process. To date, NHTSA has never utilized its ability to compromise or remit a CAFE civil penalty. These various statutory provisions and requirements, coupled with the formula for determining the total potential civil penalty due from a manufacturer, demonstrate the unique nature of the CAFE civil penalty provision and distinguish it from a typical civil penalty provision that merely sets forth an amount to be paid for a regulatory violation.

On November 2, 2015, the Federal Civil Penalties Inflation Adjustment Act Improvements Act (Inflation Adjustment Act or 2015 Act), Public Law 114-74, Section 701, was signed into law. The 2015 Act required Federal agencies to make an initial “catch-up” adjustment to the “civil monetary penalties,” as defined, they administer through an interim final rule and then to make subsequent annual adjustments for inflation. 19 The amount of increase for any “catch-up” adjustment to a civil monetary penalty pursuant to the 2015 Act was limited to 150 percent of the then-current penalty. Unless an exception applied, agencies were required to issue an interim final rule for the initial “catch-up” adjustment—without providing the opportunity for public comment ordinarily required under the Administrative Procedure Act (APA)—by July 1, 2016. 20

NMFS published a final rule on June 28, 2019 (84 FR 31146), that established an EM program for the Pacific Coast groundfish fishery. That final rule is effective July 29, 2019.

The June 28, 2019, final rule implemented an EM program in the Pacific Coast groundfish fishery, specifically for catcher vessels in the Pacific whiting fishery and fixed gear vessels in the shorebased groundfish IFQ fishery, and established requirements for service providers, vessel owners, vessel operators, and processors, to apply to and participate in the program. Two paragraphs in the requirements for vessel owners and operators were incorrectly numbered.

Section 660.604(h) lays out the effective dates and situations in which an EM Authorization may expire or become invalid, and how a vessel owner may apply for a new Authorization. The subordinate paragraphs should have followed in order (h)(1), (2), and (3). But paragraph (h)(3) was inadvertently numbered (h)(2)(iii). In order to clarify the order of the paragraphs, paragraph (h)(2)(iii) will be renumbered to (h)(3).

Section 660.604(p) lists the exceptions to the full retention requirement for Pacific whiting vessels while using EM. Two of the subordinate paragraphs were inadvertently numbered the same (p)(1)(iv). To clarify the order of the paragraphs, the final paragraph will be renumbered to (p)(1)(v).

All of these corrections are consistent with the Council action for the regulatory amendment to implement an EM program for the Pacific Coast groundfish fishery and are minor corrections necessary to correctly implement the Council's intent in their final action from April 2016.

Pursuant to 5 U.S.C. 553(b)(B), the Assistant Administrator for Fisheries (AA) finds there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be unnecessary and contrary to the public interest. Notice and comment are unnecessary and contrary to the public interest because this action corrects minor and non-substantive errors in the June 28, 2019, final rule. Immediate notice of the errors and correction is necessary to prevent confusion among participants in the fishery that could result in issues with implementation of the requirements of the EM program. To effectively correct the errors, the changes in this action must be effective on July 29, 2019, which is the effective date of the June 28, 2019, final rule. Thus, there is not sufficient time for notice and comment due to the imminent effective date of the June 28, 2019, final rule. In addition, notice and comment is unnecessary because this document makes only minor changes to correct the final rule and does not change the substance of the rule. These corrections will not affect the results of analyses conducted to support management decisions in the Pacific Coast groundfish fishery.

For the same reasons stated above, the AA has determined that good cause exists to waive the 30-day delay in effectiveness pursuant to 5 U.S.C. 553(d). This document makes only minor corrections to the final rule which will be effective July 29, 2019. Delaying effectiveness of these corrections would result in conflicts in the regulations and confusion among fishery participants. Because prior notice and an opportunity for public comment are not required to be provided for this rule by 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are not applicable. Accordingly, no Regulatory Flexibility Analysis is required for this rule and none has been prepared.

This final rule is not significant under Executive Order 12866.

In FR Doc. 2019-13324, appearing on page 31146 in the Federal Register of Friday, June 28, 2019, the following corrections are made: