Federal Register Vol. 80, No.247,

This rule is issued under the Order (7 CFR part 1222). The Order is authorized under the Commodity Promotion, Research and Information Act of 1996 (1996 Act) (7 U.S.C. 7411-7425).

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules and promoting flexibility. This action has been designated as a “non-significant regulatory action” under section 3(f) of Executive Order 12866. Accordingly, the Office of Management and Budget (OMB) has waived the review process.

This action has been reviewed in accordance with the requirements of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. The review reveals that this regulation will not have substantial and direct effects on Tribal governments and would not have significant Tribal implications.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have a retroactive effect. Section 524 of the 1996 Act (7 U.S.C. 7423) provides that it shall not affect or preempt any other Federal or State law authorizing promotion or research relating to an agricultural commodity.

Under section 519 of the 1996 Act (7 U.S.C. 7418), a person subject to an order may file a written petition with USDA stating that an order, any provision of an order, or any obligation imposed in connection with an order, is not established in accordance with the law, and request a modification of an order or an exemption from an order. Any petition filed challenging an order, any provision of an order, or any obligation imposed in connection with an order, shall be filed within two years after the effective date of an order, provision, or obligation subject to challenge in the petition. The petitioner will have the opportunity for a hearing on the petition. Thereafter, the USDA will issue a ruling on the petition. The 1996 Act provides that the district court of the United States for any district in which the petitioner resides or conducts business shall have the jurisdiction to review a final ruling on the petition, if the petitioner files a complaint for that purpose not later than 20 days after the date of the entry of USDA's final ruling.

This rule prescribes late payment and interest charges on past due assessments under the Order. The Order is administered by the Board with oversight by USDA. Under the Order, assessments are collected from manufacturers and importers and used for projects to promote paper and paper-based packaging. This rule implements authority contained in the Order and the 1996 Act that allows the Board to collect late payment and interest charges on past due assessments. This action was unanimously recommended by the Board and will contribute to the effective administration of the program.

Section 1222.52(a) of the Order specifies that the Board's programs and expenses shall be paid by assessments on manufacturers and importers and other income or funds available to the Board. Paragraph (g) of that section specifies further that when a manufacturer or importer fails to pay the assessment within 60 calendar days of the date it is due, the Board may impose a late payment charge and interest. The late payment charge and rate of interest must be prescribed in regulations issued by the Secretary. All late assessments will be subject to the specified late payment charge and interest.

The Order became effective on January 23, 2014. Assessment collection began on March 1, 2014. Manufacturers and importers must pay their assessments owed to the Board by the 30th calendar day of the month following the end of the quarter in which the paper and paper-based packaging was manufactured or imported. For example, assessments for paper manufactured or imported during the months of January, February and March are due to the Board by April 30.

Entities that domestically manufacture or import to the United States less than 100,000 short tons of paper and paper-based packaging in a year are exempt from paying assessments. If an entity is both a manufacturer and an importer, the entity's combined quantity of paper and paper-based packaging manufactured and imported during a marketing year counts toward the 100,000 short ton exemption.

Assessment funds are used for promotion activities that are intended to benefit all industry members. Entities who fail to pay their assessments on time could reap the benefits of Board programs at the expense of others. In addition, they could utilize funds for their own use that should otherwise be paid to the Board to finance Board programs. Thus, it is important that all assessed entities pay their assessments in a timely manner.

At a meeting held September 25, 2014, the Board unanimously recommended implementing the Order authority regarding late payment and interest charges. Specifically, the Board recommended that a late payment charge be imposed on any manufacturer or importer who fails to make timely remittance to the Board of the total assessments for which such manufacturer or importer is liable. The late payment charge will be imposed on any assessments not received within 60 calendar days of the date they are due. This one-time late payment charge will be equal to 10 percent of the assessments due before interest charges have accrued.

The Board also recommended that an interest rate of 11/2 percent per month be added to the outstanding balance, including any late payment charge and accrued interest, of any accounts for which payment has not been received within 60 calendar days after the assessments are due. Interest will continue to accrue monthly until the outstanding balance is paid to the Board.

This action is expected to help facilitate program administration by providing an incentive for entities to remit their assessments in a timely manner, with the intent of creating a fair and equitable process among all assessed entities. Accordingly, a new Subpart C is added to the Order for provisions implementing the paper and paper-based packaging Order, and a new § 1222.520 is added to Subpart C.

This rule also makes two additional changes to the Order. This rule will revise the term “Board” as defined in § 1222.2 from the Paper and Paper-Based Packaging Board to the Paper and Packaging Board. This change will simplify the term and bring the Order in line with current industry use. Conforming changes will also be made to § 1222.40(a) and the heading immediately prior to this section where the term is also referenced. In addition, in § 1222.108, the OMB control number will be changed from 0581-NEW to 0581-0281, the control number assigned by the OMB.

In accordance with the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), AMS is required to examine the impact of the rule on small entities. Accordingly, AMS has considered the economic impact of this action on such entities.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions so that small businesses will not be disproportionately burdened. The Small Business Administration defines, in 13 CFR part 121, small agricultural producers as those having annual receipts of no more than $750,000 and small agricultural service firms (manufacturers and importers) as those having annual receipts of no more than $7.0 million.

According to the Board, there are 69 manufacturers in the United States that produce the types of paper and paper-based packaging covered under the Order. Using an average price of $806 per short ton,1 a manufacturer who produces less than about 8,680 short tons of paper and paper-based packaging per year would be considered a small entity. It is estimated that no more than four manufacturers produced less than 8,680 short tons per year. Thus, the majority of manufacturers would not be considered small businesses.

Based on U.S. Customs and Border Protection (Customs) data, it is estimated that in 2014 there were 2,800 importers of paper and paper-based packaging. Ninety importers, or about 3 percent, imported more than $7.0 million worth of paper and paper-based packaging. Thus, the majority of importers would be considered small entities. However, all of the 20 entities that imported 100,000 short tons or more (the Order's exemption threshold) also imported more than $7.0 million worth of paper and paper-based packaging. Therefore, none of the 20 importers covered under the Order would be considered small businesses.

Based on domestic production of approximately 66.1 million short tons in 2014 and an average price of $806 per short ton, the domestic paper and paper-based packaging industry is valued at approximately $53.3 billion. According to Customs data, the value of paper and paper-based packaging imports in 2014 was about $5.9 billion.

This rule prescribes late payment and interest charges on past due assessments under the Order. The Order is administered by the Board with oversight by USDA. Under the Order, assessments are collected from manufacturers and importers and used for projects to promote paper and paper-based packaging. This rule will add a new § 1222.520 that will specify a late payment charge of 10 percent of the assessments due and interest at a rate of 11/2 percent per month on the outstanding balance, including any late payment charge and accrued interest. This section will be included in a new Subpart C—Provisions for Implementing the Paper and Paper-Based Packaging Promotion, Research and Information Order. This action was unanimously recommended by the Board and is authorized under § 1222.52(g) of the Order and section 517(e) of the 1996 Act. In addition, two additional changes are being made to reflect current practices and update the Order and regulations. These changes are: (1) Revising the name of the Board from the Paper and Paper-Based Packaging Board to the Paper and Packaging Board; and (2) the OMB control number will be changed from 0581-NEW to 0581-0281, the control number assigned by the OMB.

Regarding the economic impact of this rule on affected entities, this action imposes no costs on manufacturers and importers who pay their assessments on time. It merely provides an incentive for entities to remit their assessments in a timely manner. For all entities who are delinquent in paying assessments, both large and small, the charges will be applied the same. As for the impact on the industry as a whole, this action will help facilitate program administration by providing an incentive for entities to remit their assessments in a timely manner, with the intent of creating a fair and equitable process among all assessed entities.

Additionally, as previously mentioned, the Order provides for an exemption for entities that domestically manufacture or import less than 100,000 short tons annually. It is estimated that 24 out of the 69 domestic manufacturers, or 35 percent, produce less than 100,000 short tons per year and are thus exempt from paying assessments under the Order. Of the 2,800 importers of paper and paper packaging, it is estimated that 2,780, or 99 percent, import less than 100,000 short tons per year and are also exempt from paying assessments. Thus, about 45 domestic manufacturers and 20 importers pay assessments under the Order.

The alternative to this action would be to maintain the status quo and not impose late payment and interest charges on past due assessments. However, the Board determined that implementing these charges will help facilitate program administration by encouraging entities to pay their assessments in a timely manner. The Board reviewed the late payment and interest charges applied by other research and promotion programs and concluded that a 10 percent late payment charge and interest at a rate of 11/2 percent per month on the outstanding balance would be appropriate.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the information collection and recordkeeping requirements that are imposed by the Order have been approved previously under OMB control number 0581-0281. This rule will not result in a change to the information collection and recordkeeping requirements previously approved and will impose no additional reporting and recordkeeping burden on manufacturers and importers of paper and paper-based packaging.

As with all Federal promotion programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

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

Regarding outreach efforts, the Board met on September 25, 2014, and unanimously made its recommendation. The Board's meetings, including meetings held via teleconference, are open to the public and interested persons are invited to participate and express their views.

A proposed rule concerning this action was published in the Federal Register on August 19, 2015 (80 FR 50225). The proposal was made available through the Internet by USDA and the Office of the Federal Register. A 60-day comment period ending October 19, 2015, was provided to allow interested persons to submit comments. One comment was received in favor of implementing the late payment and interest charges.

After consideration of all relevant matters presented, including the information and recommendation submitted by the Board and other available information, it is hereby found that this rule, as hereinafter set forth, is consistent with and will effectuate the purposes of the 1996 Act.

For the reasons set forth in the preamble, 7 CFR part 1222 is amended as follows:

In this final rule, DOE incorporates by reference into part 430 the following industry standards:

(1) IES LM-66-14 (“IES LM-66-14”), IES Approved Method for the Electrical and Photometric Measurements of Single-Based Fluorescent Lamps, approved December 30, 2014.

(2) IES LM-79-08 (“IES LM-79-08”), IES Approved Method for Electrical and Photometric Measurements of Solid-State Lighting Products, approved December 31, 2007.

Interested persons can obtain copies of IES standards from the Illuminating Engineering Society, 120 Wall Street, Floor 17, New York, NY 10005-4001, (212) 248-5000, or www.ies.org.

Title III, Part B 1 of the Energy Policy and Conservation Act of 1975 (EPCA), Public Law 94-163 (42 U.S.C. 6291 et seq.), established the Energy Conservation Program for Consumer Products Other Than Automobiles, a program covering the ceiling fan light kits (CFLKs) that are the focus of this document.2 (42 U.S.C. 6293(b)(16)(A)(ii), 6295(ff)(2)-(5))

Under EPCA, the energy conservation program consists essentially of four parts: (1) Testing, (2) labeling, (3) energy conservation standards, and (4) certification and enforcement procedures. The testing requirements consist of test procedures that manufacturers of covered products must follow in order to produce data that is used for (1) certifying to DOE that their products comply with the applicable energy conservation standards adopted under EPCA, and (2) making other representations about the efficiency of those products. (42 U.S.C. 6293(c); 42 U.S.C. 6295(s)) Similarly, DOE must use these test requirements to determine whether products comply with any relevant standards established under EPCA. (42 U.S.C. 6295(s))

EPCA requires that test procedures for ceiling fan light kits be based on the “ENERGY STAR® Program Requirements for CFLs” and the “ENERGY STAR Program Requirements for Residential Light Fixtures” in effect as of August 8, 2005. (42 U.S.C. 6293(b)(16)(A)(ii)) DOE published a final rule in December 2006 (December 2006 final rule) and established DOE's current test procedures for ceiling fan light kits under 10 CFR part 430, subpart B, appendix V. 71 FR 71340 (Dec. 8, 2006) EPCA also provides, however, that DOE “may review and revise” the ceiling fan light kit test procedures. (42 U.S.C. 6293(b)(16)(B)). Accordingly, as discussed in section III.A, DOE is replacing the existing references to ENERGY STAR program requirements with direct references to the latest versions of the appropriate industry test methods.

Under 42 U.S.C. 6293, EPCA sets forth the criteria and procedures that DOE must follow when prescribing or amending test procedures for covered products. EPCA provides, in relevant part, that any test procedures prescribed or amended under this section must be reasonably designed to produce test results which measure energy efficiency, energy use or estimated annual operating cost of a covered product during a representative average use cycle or period of use and must not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3))

In addition, if DOE determines that a test procedure amendment is warranted, it must publish proposed test procedures and offer the public an opportunity to present oral and written comments on them. (42 U.S.C. 6293(b)(2)) In any rulemaking to amend a test procedure, DOE must also determine to what extent, if any, the proposed test procedure would alter the product's measured energy efficiency as determined under the existing test procedure. (42 U.S.C. 6293(e))

EPCA requires DOE, at least once every 7 years, to evaluate all covered products and either amend the test procedures (if the Secretary determines that amended test procedures would more accurately or fully comply with the requirements of 42 U.S.C. 6293(b)(3)) or publish a determination in the Federal Register not to amend them. (42 U.S.C. 6293(b)(1)(A)) DOE published a NOPR to propose amendments for its test procedures for CFLKs (October 2014 NOPR). 79 FR 64688 (October 31, 2014).

For test procedures of covered products that do not fully account for standby mode and off mode energy consumption, EPCA directs DOE to amend its test procedures to account for standby mode and off mode energy consumption, if technically feasible. (42 U.S.C. 6295(gg)(2)(A)) If integrated test procedures are technically infeasible, DOE must prescribe separate standby mode and off mode test procedures for the covered product, if technically feasible. Id.

In the October 2014 NOPR, DOE proposed amendments to the current test procedures and new test procedures that would support amendments to the CFLK energy conservation standards currently being considered by DOE. The October 2014 NOPR also proposed to replace references to ENERGY STAR performance requirements with tables that contain the specific performance requirements from the ENERGY STAR documents and proposed updated guidance related to accent lighting in CFLKs. DOE conducted a public meeting to discuss and receive comments on the October 2014 NOPR on November 18, 2014.

EPCA, as amended, established separate energy conservation standards for three groups of CFLKs: (1) Those with medium screw base sockets, (2) those with pin-based sockets for fluorescent lamps, and (3) all other CFLKs. (42 U.S.C. 6295(ff)(2)-(4)) In a technical amendment published on October 18, 2005, DOE codified the statute's requirements for CFLKs with medium screw base sockets and CFLKs with pin-based sockets for fluorescent lamps. 70 FR 60413. For all other CFLKs, EPCA specified that the prescribed standard for these CFLKs would become effective only if DOE failed to issue a final rule on energy conservation standards for CFLKs by January 1, 2007. (42 U.S.C. 6295(ff)(4)(C)) Because DOE did not issue a final rule on standards for CFLKs by January 1, 2007, DOE published a technical amendment that codified the statute's requirements for all CFLKs other than those with medium screw base and pin-based sockets for fluorescent lamps. 72 FR 1270 (Jan. 11, 2007). DOE subsequently published another technical amendment to codify the EPCA requirement that CFLKs with sockets for pin-based fluorescent lamps be packaged with lamps to fill all sockets. 74 FR 12058 (Mar. 3, 2009).

EPCA allows DOE to amend energy conservation standards for CFLKs any time after January 1, 2010. (42 U.S.C. 6295(ff)(5)) In a separate rulemaking proceeding, DOE is proposing amending energy conservation standards for CFLKs.3 DOE initiated that rulemaking by publishing a Federal Register notice announcing a public meeting and availability of the framework document. 78 FR 16443 (Mar. 15, 2013). DOE held a public meeting to discuss the framework document for the CFLK standards rulemaking on March 22, 2013. DOE issued the preliminary analysis for the CFLK energy conservation standards rulemaking on October 31, 2014. 79 FR 64712 (Oct. 31, 2014). DOE held a public meeting to discuss the preliminary analysis for the CFLK standards rulemaking on November 18, 2014. DOE subsequently issued a NOPR for the CFLK energy conservation standards rulemaking (hereafter “CFLK ECS NOPR”) and held a public meeting on August 18, 2015. 80 FR 48624 (August 13, 2015).

This final rule amends DOE's current test procedures for CFLKs contained in 10 CFR part 430, subpart B, appendix V; 10 CFR 429.33; and 10 CFR 430.23(x). This final rule: (1) Requires that representations of efficacy, including certifications of compliance with CFLK standards, be made according to DOE lamp test procedures, where they exist, and industry test procedures where relevant DOE test procedures do not exist; (2) replaces references to superseded ENERGY STAR 4 requirements in appendix V with references to the latest versions of industry standards; and (3) for ease of reference, replaces references to ENERGY STAR requirements in existing CFLK standards contained in 10 CFR 430.32(s) with the specific requirements.

In November 2013, pursuant to sections 1098 and 1100A of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act),1 the Bureau issued the TILA-RESPA Final Rule, combining certain disclosures that consumers receive in connection with applying for and closing on a mortgage loan.2 On January 20, 2015, the Bureau issued the “Amendments to the 2013 Integrated Mortgage Disclosures Rule Under the Real Estate Settlement Procedures Act (Regulation X) and the Truth in Lending Act (Regulation Z) and the 2013 Loan Originator Rule Under the Truth in Lending Act (Regulation Z)” final rule (Amendments).3 On July 21, 2015, the Bureau issued a final rule to delay the effective date of the TILA-RESPA Final Rule and Amendments to October 3, 2015, and to finalize certain technical amendments and corrections.4

The publication of the TILA-RESPA Final Rule in the Federal Register resulted in several unintended deletions of existing regulatory text from Regulation Z and the Official Interpretations (commentary) in the Code of Federal Regulations (CFR) and, in one case, the omission of regulatory language in the TILA-RESPA Final Rule from the CFR. To correct the CFR, the Bureau is now republishing the deleted and omitted text, consistent with the Bureau's intent in the TILA-RESPA Final Rule.

Specifically, this final rule makes the following corrections to reinsert existing regulatory text that was inadvertently deleted from Regulation Z and its commentary:

This rule also amends the commentary to appendix D to Regulation Z to add paragraph 7 that had been included in the TILA-RESPA Final Rule published in the Federal Register but that was inadvertently omitted from the commentary to appendix D in the CFR.

These technical corrections are non-substantive changes to the TILA-RESPA Final Rule. No changes have been made to the deleted or omitted text or any text of the TILA-RESPA Final Rule that has already been codified in the CFR. To eliminate confusion among interested persons, the Bureau is republishing all paragraphs containing the deleted and omitted text in their entirety.

The Bureau is issuing these technical corrections solely to correct the CFR. The Bureau finds that there is good cause to publish these corrections without seeking public comment, consistent with 5 U.S.C. 553(b)(B). Public comment is unnecessary because the rule merely makes technical changes to ensure that the TILA-RESPA Final Rule appears in the CFR as the Bureau intended and because it corrects inadvertent, technical errors about which there is minimal, if any, basis for substantive disagreement. Additionally, the Bureau finds good cause to dispense with a 30-day delay of the effective date. See 5 U.S.C. 553(d)(3). With these corrections, the Bureau is only clarifying how the TILA-RESPA Final Rule should have been codified in the CFR, and preventing incorrect codification in the 2016 hard copy edition of the CFR, which incorporates CFR changes made prior to January 1, 2016. Therefore, the Bureau is publishing these corrections as a final rule that will be effective upon publication in the Federal Register because the need to implement the corrections immediately outweighs any need for providing additional time to comply with this rule.

For the reasons set forth above, the Bureau amends Regulation Z, 12 CFR part 1026, as set forth below:

In January 2012, FHFA moved to a new headquarters building in Southwest Washington, DC. As a result, the addresses for FHFA's former locations in Northwest Washington, DC, included in 12 CFR 1203.29, 1209.15(a), 1263.5(a)(2), and 1264.6(a) are now out-of-date. This final rule amends those regulations to replace the FHFA's former addresses with its current address, 400 7th Street SW., Washington, DC 20219.

Effective November 1, 2015, all mail addressed to FHFA is being processed through a different mail processing facility. This facility change required that FHFA use a new zip code. As a result, the zip code in the addresses for the FHFA included in 12 CFR 1200.1(b), 1200.2(g), 1202.3(c), 1202.5(a), 1202.9(a), 1204.3(b), 1204.5(b)(2), 1209.102(a)(1), and 1215.7(b) are now out-of-date. This final rule amends those regulations to replace the FHFA's zip code, which changed from 20024 to 20219. The street address of 400 7th Street SW., Washington, DC remains the same.

FHFA submitted a change-of-address request to the local United States Post Office to forward mail containing the old zip code; however, mail addressed with the zip code 20024 after November 1, 2015, may result in delayed delivery to all FHFA offices.

Pursuant to the Administrative Procedure Act (APA), notice and comment are not required prior to the issuance of a final rule if an agency, for good cause, finds that “notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” 1 FHFA finds that public notice and comment on this final rule are unnecessary. The final rule's update of FHFA's address and postal zip code is purely a technical change to the Agency's regulations and provides FHFA's regulated entities, interested parties, and other members of the public with FHFA's current and accurate location and mailing address information. For these reasons, FHFA has good cause to conclude that advance notice and comment under the APA for this rulemaking are unnecessary.

This final rule is effective on December 24, 2015. Pursuant to the APA, a final rule may be effective without 30 days advance publication in the Federal Register if an agency finds good cause and publishes its finding with the final rule.2 As described above, the updates made by this final rule to FHFA's physical addresses and zip code are technical changes and will have no substantive effect on FHFA's regulated entities, interested parties, or other members of the public. Therefore, the FHFA finds good cause to dispense with a delayed effective date.

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all The Boeing Company Model 777 airplanes. The NPRM published in the Federal Register on May 12, 2015 (80 FR 27116). The NPRM was prompted by an evaluation by the DAH indicating that the lap splices of the aft pressure bulkhead webs are subject to WFD on aging Model 777 airplanes that have accumulated at least 38,000 total flight cycles. The NPRM proposed to require repetitive inspections for any crack in the aft webs of the radial lap splices of the aft pressure bulkhead, and, if necessary, corrective actions. We are issuing this AD to detect and correct fatigue cracking in the aft webs of the radial lap splices of the aft pressure bulkhead; such cracking could result in reduced structural integrity of the airplane, decompression of the cabin, and collapse of the floor structure.

We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM (80 FR 27116, May 12, 2015) and the FAA's response to each comment.

FedEx Express stated:

• All of its Boeing Model 777s would be affected.

• The proposed inspection threshold and intervals would fit into its maintenance schedule.

• The number of man-hours and elapsed time to accomplish the inspections would not impact the overall span-time of its maintenance schedule.

• The proposed inspections do not require any special inspection techniques, training, or tooling.

Boeing requested that the unsafe condition statement in the NPRM (80 FR 27116, May 12, 2015) be revised to specify that the unsafe condition exists on aging airplanes, rather than new airplanes. Boeing stated that its analysis concluded that airplanes would have to accumulate at least 38,000 total flight cycles before the lap splices of the aft pressure bulkhead webs would be subject to WFD.

We agree with Boeing's request and have revised the unsafe condition statement in the preamble and regulatory text of this final rule accordingly.

American Airlines (AA) requested that the first action specified in step 3.B.5. of the Accomplishment Instructions of Boeing Alert Service Bulletin 777-53A0078, dated December 5, 2014, be omitted from the requirements of the proposed AD (80 FR 27116, May 12, 2015). The action is to put the airplane back into a serviceable condition. AA stated that this action does not address the unsafe condition addressed by the proposed rule and that most operators would accomplish the proposed AD requirements during a maintenance visit. AA stated that in the context of a maintenance visit, returning the airplane to a serviceable condition immediately after completion of the inspections and any associated corrective actions would not be possible. AA indicated that an operator would wait until all of the maintenance items scheduled for that visit would have been completed before putting the airplane back into a serviceable condition.

We agree with the commenter's statement that this action does not need to be required by this final rule; several other FAA regulations require restoring the airplane to a serviceable condition before further flight. However, the step of returning the airplane to a serviceable condition is not marked required for compliance (“RC”) in Boeing Alert Service Bulletin 777-53A0078, dated December 5, 2014; therefore, as noted in paragraph (i)(4)(ii) of this AD, this step may be delayed using an accepted method in accordance with the operator's maintenance or inspection program without obtaining approval of an alternative method of compliance (AMOC). We have not changed this AD in this regard.

Air New Zealand requested clarification regarding the relationship between the NPRM (80 FR 27116, May 12, 2015) and AD 2012-07-06, Amendment 39-17012 (77 FR 21429, April 10, 2012). Specifically, the commenter asked if the NPRM would supersede AD 2012-07-06; if the AMOC approval included in AD 2012-07-06 would be included in the NPRM; and if the proposed inspections in the NPRM should be done in lieu of or in addition to the existing inspections required by AD 2012-07-06.

We agree with the commenter's request for clarification. This is a new AD applicable to all The Boeing Company Model 777 airplanes and requires repetitive inspections for cracking in the aft webs of the radial lap splices of the aft pressure bulkhead, and corrective actions if necessary. AD 2012-07-06, Amendment 39-17012 (77 FR 21429, April 10, 2012), is applicable to certain Model 777 airplanes and requires revising the maintenance program to update inspection requirements to detect fatigue cracking of principal structural elements throughout the airplane.

An AMOC for AD 2012-07-06, Amendment 39-17012 (77 FR 21429, April 10, 2012), was issued so operators could use the corresponding compliance times and inspections specified in Boeing Alert Service Bulletin 777-53A0078, dated December 5, 2014, for the inspection requirements for the corresponding locations specified in Boeing Model 777 Structural Significant Item 53-80-I13A and paragraphs (g) and (h) of AD 2012-07-06. The information regarding this AMOC is included in Boeing Alert Service Bulletin 777-53A0078, dated December 5, 2014. Operators are required to accomplish the requirements in this new AD in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 777-53A0078, dated December 5, 2014. If the actions of this new AD are done, the requirements of AD 2012-07-06 are met only for areas inspected in accordance with Boeing Alert Service Bulletin 777-53A0078, dated December 5, 2014.

Regarding the question about whether the AMOC approval included in AD 2012-07-06, Amendment 39-17012 (77 FR 21429, April 10, 2012), would be included in this AD, paragraph (i) of this AD contains the AMOC approval procedures for this AD. However, because the existing inspections required by AD 2012-07-06 are not sufficient to preclude WFD in this area, we have not included previous AMOCs issued for AD 2012-07-06 as AMOCs for this AD. We have not changed this AD in this regard.

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

• Are consistent with the intent that was proposed in the NPRM (80 FR 27116, May 12, 2015) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM (80 FR 27116, May 12, 2015).

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

We reviewed Boeing Alert Service Bulletin 777-53A0078, dated December 5, 2014. This service information describes procedures for inspections of the lap splices in the web of the aft pressure bulkhead for cracking, and corrective actions. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD affects 193 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

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

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

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

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

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

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

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

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

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

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

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Bombardier, Inc. Model CL-600-2A12 (CL-601) and CL-600-2B16 (CL-601-3A, CL-601-3R, and CL-604 Variants) airplanes. The NPRM published in the Federal Register on September 17, 2014 (79 FR 55673).

Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2014-05, dated January 20, 2014 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

Required corrective actions include repair or replacement of the IDG power cable if any chafing is found, and replacement of any cracked or broken support bracket. You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov/#!documentDetail;D=FAA-2014-0625-0003.

We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM (79 FR 55673, September 17, 2014) and the FAA's response to each comment.

Bombardier asked that one of the service bulletin references identified in the “Relevant Service Information” section of the NPRM (79 FR 55673, September 17, 2014) be changed to correct a typographical error. Bombardier Service Bulletin “604-0625,” as identified in the “Relevant Service Information” section, should be identified as Bombardier Service Bulletin “601-0625.”

We agree with the commenter for the reason provided, and we have changed this reference to correctly specify Bombardier Service Bulletin 601-0625 throughout this final rule.

Bombardier asked that we clarify the language in paragraph (h) of the proposed AD, “Credit for Previous Actions.” Bombardier stated that the current language may cause some confusion because the content is not clear.

We acknowledge the commenter's concern, and we provide the following clarification for the credit language used in paragraph (h) of this AD. Paragraph (h) of this AD matches the intent of the last two paragraphs in the “Corrective Actions” section of Canadian AD CF-2014-05, dated January 20, 2014. Both this FAA AD and the Canadian AD give credit for accomplishing Bombardier Service Bulletins 605-24-007, 604-24-026, and 601-0625, all dated September 18, 2012, but only if Service Request for Product Support Action (SRPSA) 27512, SRPSA 30806, SRPSA 32727, SRPSA 32864, or SRPSA 33161 has not been done.

We have included the airplane models identified in the service information in the “Related Service Information under 1 CFR part 51” section, and paragraphs (g)(1), (g)(2), and (g)(3) of this AD (79 FR 55673, September 17, 2014), for clarification.

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

• Are consistent with the intent that was proposed in the NPRM (79 FR 55673, September 17, 2014) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM (79 FR 55673, September 17, 2014).

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

Bombardier has issued the following service information:

• Bombardier Service Bulletin 605-24-007, Revision 01, dated January 13, 2014 (for Model CL-600-2B16 airplanes (CL-604 Variant));

• Bombardier Service Bulletin 604-24-026, Revision 01, dated January 13, 2014 (for Model CL-600-2B16 airplanes (CL-604 Variant)); and

• Bombardier Service Bulletin 601-0625, Revision 01, dated January 13, 2014 (for Model CL-600-2A12 (CL-601) and CL-600-2B16 airplanes (CL-601-3A and CL-601-3R Variants)).

This service information describes procedures for a one-time inspection of the IDG power cables for chafing, and for any cracked or broken support bracket of the hydraulic line; and corrective actions if necessary. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD affects 95 airplanes of U.S. registry.

We also estimate that it takes about 1 work-hour per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this AD on U.S. operators to be $8,075, or $85 per product.

We have received no definitive data that would enable us to provide cost estimates for the on-condition repair of chafed power cables or cracked or broken support brackets, as specified in this AD.

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

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

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

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

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

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

3. Will not affect intrastate aviation in Alaska; and

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

You may examine the AD docket on the Internet at http://www.regulations.gov/#!docketDetail;D=FAA-2014-0625; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone 800-647-5527) is in the ADDRESSES section.

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus Model A330-200, A330-200 Freighter, and A330-300 series airplanes; and all Model A340-200 and A340-300 series airplanes. The NPRM published in the Federal Register on February 13, 2015 (80 FR 7989).

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2014-0127, dated May 15, 2014 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus Model A330-200, A330-200 Freighter, and A330-300 series airplanes; and all Model A340-200, and A340-300 series airplanes. The MCAI states:

You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov/#!documentDetail;D=FAA-2015-0083-0002.

We gave the public the opportunity to participate in developing this AD. We have considered the comment received. The following presents the comment received on the NPRM (80 FR 7989, February 13, 2015) and the FAA's response.

Delta Airlines requested that paragraphs (g) and (h) of the proposed AD (80 FR 7989, February 13, 2015) be revised to specify the part numbers of the affected brackets. Delta suggested that paragraph (g) of the proposed AD be revised to include the part number after the reference to bracket No. 6 (part number (P/N) F2511012820000, pre-modification Number 55128S18242; and P/N F2511373420000, post-modification Number 55128S18242). Delta also requested that paragraph (h)(2) of the proposed AD be revised to include the part number after bracket No. 6 (P/N F2511012820000, pre-modification Number 55128S18242; and P/N F2511373420000, post-modification Number 55128S18242) and bracket No. 7 (P/N F2511012820000, pre-modification Number 55128S18242; and P/N F2511373420000, post-modification Number 55128S18242). Delta stated that Airbus Service Bulletin A330-25-3538, Revision 02, dated April 24, 2014, specifies to inspect only P/N F2511012820000, pre-modification Number 55128S18242, and P/N F2511373420000, post-modification Number 55128S18242, and identifies only those part numbers as “affected” brackets that are used on both bracket No. 6 and bracket No. 7.

We agree to include the part numbers identified by the commenter in paragraphs (g) and (h)(2) of this AD. We have also included the part numbers in paragraphs (h)(1) and (h)(2)(i) of this AD. The “Reason/Description/Operational Consequences” section of Airbus Service Bulletin A330-25-3538, Revision 02, dated April 24, 2014, specifies to inspect P/N F2511012820000, pre-modification Number 55128S18242, and P/N F2511373420000, post-modification Number 55128S18242. Also, the Accomplishment Instructions of that service bulletin specify to replace P/N F2511012820000 or P/N F2511373420000, as applicable. We contacted Airbus for verification that only those part numbers are considered to be “affected” brackets and Airbus confirmed that only those part numbers are affected. The same affected and replacement parts are used on both Airbus Model A330-200, A330-200 Freighter, and A330-300 series airplanes; and A340-200 and A340-300 series airplanes.

A typographical error in paragraph (c)(1) of the proposed AD (80 FR 7989, February 13, 2015) has been corrected in this final rule. Paragraph (c)(1) of the proposed AD inadvertently included Model A330-313 airplanes instead of Model A330-343 airplanes. The SUMMARY section and preamble of the NPRM stated that the applicability included Model A330-300 series airplanes, which include Model A330-343 airplanes.

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

• Are consistent with the intent that was proposed in the NPRM (80 FR 7989, February 13, 2015) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM (80 FR 7989, February 13, 2015).

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

Airbus has issued the following service information.

• Airbus Service Bulletin A330-25-3538, Revision 02, dated April 24, 2014, which provides procedures for inspection of cockpit instrument panel bracket 6.

• Airbus Service Bulletin A330-25-3548, dated October 31, 2013, which provides procedures for replacement of cockpit instrument panel bracket 6 with a reinforced titanium bracket.

• Airbus Service Bulletin A340-25-4351, Revision 01, dated January 31, 2014, which provides procedures for inspection of cockpit instrument panel bracket 6.

• Airbus Service Bulletin A340-25-4354, dated October 31, 2013, which provides procedures for replacement of cockpit instrument panel bracket 6 with a reinforced titanium bracket.

This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD affects 76 airplanes of U.S. registry.

We also estimate that it will take about 8 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this AD on U.S. operators to be $51,680, or $680 per product.

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

In addition, we estimate that any necessary replacements will take about 23 work-hours and require parts costing $0, for a cost of $1,955 per product. We have no way of determining the number of aircraft that might need these actions.

We estimate that the optional modification will take about 9 work hours and require parts costing $1,770, for a cost of $2,535.

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

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

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

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

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

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

3. Will not affect intrastate aviation in Alaska; and

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

You may examine the AD docket on the Internet at http://www.regulations.gov/#!docketDetail;D=FAA-2015-0083; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone 800-647-5527) is in the ADDRESSES section.

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

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2013-23-03, Amendment 39-17658 (78 FR 68345, November 14, 2013). AD 2013-23-03 applied to certain The Boeing Company Model 747-100, 747-100B, 747-100B SUD, 747-200B, 747-200C, 747-200F, 747-300, 747-400, 747-400D, 747-400F, and 747SR series airplanes. The NPRM published in the Federal Register on April 15, 2015 (80 FR 20178). The NPRM was prompted by a report that a machining defect was also found on some of the actuator assemblies inspected during manufacture. The NPRM proposed to continue to require doing a detailed inspection of certain attach fittings for a cylindrical defect and replacing if necessary. This defect could lead to fatigue cracking and subsequent fracture. For certain airplanes, the NPRM proposed to mandate new inspections of the inboard actuator attach fittings for machining defects, and overhaul or replacement, if necessary. The NPRM also proposed to limit the compliance time for doing the replacement for certain other airplanes. We are issuing this AD to detect and correct defective inboard actuator attach fittings which, combined with loss of the outboard actuator load path, could result in uncontrolled retraction of the outboard flap, damage to flight control systems, and consequent reduced controllability of the airplane.

We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM (80 FR 20178, April 15, 2015) and the FAA's response to each comment.

Boeing asked that we revise the NPRM (80 FR 20178, April 15, 2015) to specify that no additional action is required for a wall thickness of 0.140 inch or greater with no machining defect present, as also provided in Table 1 of Boeing Alert Service Bulletin 747-57A2443, Revision 1, dated June 23, 2014.

We agree with the commenter that no additional action is required for a wall thickness of 0.140 inch or greater with no machining defect present. However, we do not agree with the request to revise the AD because if this condition exists, no action is required by this AD. Only actions that are required to address the identified unsafe condition are specified in this AD. We have made no change to the AD in this regard.

Paragraph (k) of the proposed AD (80 FR 20178, April 15, 2015) would have affected certain inboard actuator attach fittings that were inspected using Boeing Alert Service Bulletin 747-57A2443, dated September 12, 2013. United Airlines (UAL) requested that we remove this inspection criterion. UAL noted that there was no requirement to identify the actuators; therefore, operators would not be likely to positively identify them. UAL added that actuators are not likely to be tracked in position, and could have been moved between airplanes as a result of maintenance. UAL also stated that, in general, it would be better if the AD as a whole was worded not to depend on a record of previous inspection accomplishment, but rather on parts identification.

We acknowledge the commenter's concerns. We realize that paragraph (k) of this AD is predicated on the fact that operators kept records from the inspection specified in Boeing Alert Service Bulletin 747-57A2443, dated September 12, 2013. The intent of this AD is to either replace inboard actuator attach fittings having part number (P/N) 65B08564-7, or to inspect P/N 65B08564-7 for cylindrical defects, machining defects, and wall thickness, and accomplish applicable corrective actions. For that reason we have changed the introductory text of paragraph (k) of this AD so that it applies to airplanes on which doing the detailed inspection required by paragraph (h)(1) of this AD was done before the effective date of this AD and a cylindrical defect was found but a replacement was not done. We have also revised paragraph (k)(1) of this AD to require an ultrasonic inspection to determine the minimum thickness or mechanically determine the minimum thickness and to allow a records review for the inspections. This change ensures all inspections are done on airplanes with P/N 65B08564-7 that did not replace P/N 65B08564-7 after complying with AD 2013-23-03, Amendment 39-17658 (78 FR 68345, November 14, 2013).

To address airplanes on which inboard actuator attach fittings were replaced after complying with paragraph (h)(1) of AD 2013-23-03, Amendment 39-17658 (78 FR 68345, November 14, 2013), we have added new paragraph (m) to this AD, which specifies that for airplanes on which the detailed inspection required by paragraph (h)(1) of this AD is done before the effective date of this AD and the inboard actuator attach fitting has been replaced since that inspection, the inspection to determine the part number specified in paragraph (g) of this AD must be done within 90 days after the effective date of this AD, and the applicable actions specified in paragraphs (h), (i), and (j) of this AD must be done within the applicable times specified in paragraphs (h), (i), and (j) of this AD. We have also added a records review as an option if records are available that can conclusively determine the part number. We redesignated subsequent paragraphs accordingly.

UAL stated that the actions specified in paragraph (l) of the proposed AD (80 FR 20178, April 15, 2015) would also depend on the record of findings from inspections made in accordance with AD 2013-23-03, Amendment 39-17658 (78 FR 68345, November 14, 2013). UAL added that there was no AD requirement to record these findings. UAL noted that operators conducted the inspections and took actions that were required. UAL stated that it would be better to call out a new inspection in the AD to determine which condition the actuator is in, and then take action as appropriate.

We acknowledge the commenter's concerns. We have revised paragraph (l) of this AD to specify that no actuator attach fitting having P/N 65B08564-7 may be installed on any airplane unless the inspection specified in paragraph (h)(1) of this AD is done prior to installation and the applicable actions specified in paragraphs (i) and (j) of this AD are done within the applicable times specified in paragraphs (i) and (j) of this AD. We have also added a records review as an option if records are available that can conclusively determine if the actions have been done.

We have revised paragraph (h)(2) of this AD by referring to Boeing Alert Service Bulletin 747-57A2443, Revision 1, dated June 23, 2014, as an appropriate source of service information for accomplishing the required actions.

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

• Are consistent with the intent that was proposed in the NPRM (80 FR 20178, April 15, 2015) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM (80 FR 20178, April 15, 2015).

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

We reviewed Boeing Alert Service Bulletin 747-57A2443, dated September 12, 2013; and Boeing Alert Service Bulletin 747-57A2443, Revision 1, dated June 23, 2014. The service information describes procedures for new inspections of the inboard actuator attach fittings for machining defects, and overhaul or replacement, if necessary. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD affects 184 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

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

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

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

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

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

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

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

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

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

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

I. Background

The Commission amended Regulation 1.35(a) in December 2012 as part of a series of rulemakings intended to integrate certain existing Commission rules more fully with the framework created by the Dodd-Frank Wall Street Reform and Consumer Protection Act for swap dealers and major swap participants (the “2012 Amendment”).1

Regulation 1.35(a) requires each futures commission merchant (“FCM”), retail foreign exchange dealer (“RFED”), introducing broker (“IB”), and member of a DCM or of a SEF to keep full, complete, and systematic records of all transactions relating to its business of dealing in commodity interest and related cash or forward transactions.2 The Commodity Exchange Act (“CEA”) defines “member” as an individual, association, partnership, corporation, or trust—(i) owning or holding membership in, or admitted to membership representation on, the registered entity 3 or derivatives transaction execution facility; or (ii) having trading privileges on the registered entity or derivatives transaction execution facility.4

Regulation 1.35(a) requires FCMs, RFEDs, IBs, and members of a DCM or of a SEF to keep records of written communications that lead to the execution of a commodity interest transaction and related cash or forward transactions. Additionally, Regulation 1.35(a) includes a requirement to keep records of certain oral communications, which applies to each FCM, RFED, large IB (defined as an IB that has generated over $5 million in aggregate gross revenues over the preceding three years from its activities as an IB), and member of a DCM or of a SEF that is registered or required to register with the Commission as a floor broker (“FB”) (only with regard to acting as an agent for a non-affiliated client) or as a CTA.5 Unlike the written recordkeeping requirement that applies to both commodity interest transactions and related cash or forward transactions, the oral recordkeeping requirement is limited to commodity interest transactions.6 The scope of records covered by Regulation 1.35(a) includes communications by telephone, voicemail, facsimile, instant messaging, chat rooms, electronic mail, mobile device, or other digital or electronic media.7 These communications include text messages. Regulation 1.35(a) also mandates that all records be kept in a form and manner identifiable and searchable by transaction.

In FR Doc 2015-29692 appearing at page 75931 in the Federal Register of Monday, December 7, 2015, the following correction is made:

The United States Department of the Treasury has issued savings bonds since 1935 on the credit of the United States to raise funds for federal programs and operations. Article 8, Section 8, Clause 2 of the Constitution authorizes the federal government to “borrow money on the credit of the United States.” Under this grant of power, “the Congress authorized the Secretary of the Treasury, with the approval of the President, to issue savings bonds in such form and under such conditions as he may from time to time prescribe. . . .” Free v. Bland, 369 U.S. 663, 667 (1962) (citing the predecessor to 31 U.S.C. 3105). Congress provided that the proceeds of savings bonds may be used by the federal government for any expenditures authorized by law. See 31 U.S.C. 3105(a).

Congress expressly authorized the Secretary of the Treasury to establish the terms and conditions that govern the savings bond program. 31 U.S.C. 3105(c). Treasury's savings bond regulations implement this authority, setting forth a contract between the United States and savings bond purchasers. This contract gives purchasers confidence that the United States will honor its debts when a purchaser surrenders a savings bond for payment. The contract also protects the public fisc by ensuring that Treasury does not face multiple claims for payment on a single savings bond.

Under Treasury regulations, savings bonds have always been registered securities. The regulations authorize several forms of registration, including registration to individuals who are owners, co-owners, and beneficiaries, as well as to fiduciaries and institutions. See 31 CFR 315.7, 353.7, and 360.6. The regulations also provide that savings bonds are not transferrable and are payable only to the registered owner, except as described in Treasury regulations. See 31 CFR 315.15, 353.15, and 360.15. Detailed regulations describe when payment will be made to a person or entity that is not the registered owner.

To redeem a paper savings bond, the registered owner or a successor specified in the regulations must surrender the physical bond. Although there are exceptions to the requirement that the bond be surrendered, the exceptions are carefully drawn to protect the owner's rights and to protect Treasury against competing claims. For example, if a claimant cannot surrender the bond, the claimant must provide satisfactory evidence of the loss, theft, or destruction of the bond, or a satisfactory explanation of the mutilation or defacement, as well as sufficient information to identify the bond by serial number. See, e.g., 31 CFR parts 315 and 353, subpart F. An owner's right to payment continues indefinitely. Pursuant to statutory authority, Treasury regulations allow owners to keep their bonds indefinitely and to surrender them for payment even years after the bonds mature. See 31 U.S.C. 3105(b) and 31 CFR parts 315 and 353, subpart H.

Many state escheat laws allow states to take custody of unclaimed or abandoned property. Treasury's savings bond regulations do not explicitly address the topic of abandoned savings bonds, or the effect of custody escheat statutes on the rights of savings bond owners. Treasury has addressed the topic in guidance and in litigation.

In 1952, Treasury issued a bulletin to the Federal Reserve Banks providing guidance on custody escheat claims. The bulletin addressed a state claim to the custody of four savings bonds in the state's possession, which had belonged to a ward of the state who died without heirs.1 In this context, Treasury stated that it will not recognize a state claim to the custody of savings bonds, but will recognize an escheat judgment that confers title on a state because “in escheat the state is `the ultimate heir.' ” 2 The 1952 bulletin does not identify a specific regulation authorizing state escheat claims, the full criteria under which they will be considered, or a process for submitting them. Because the state did not claim title over the bonds, this kind of detail was unnecessary.

Treasury addressed a new, broader custody escheat claim in 2004 and 2006, when several states attempted to claim the proceeds of all matured, unredeemed bonds registered to residents in their state. Unlike the claim addressed by the 1952 bulletin, these states did not possess the bonds they sought to redeem, which presumably were still held by their owners. Treasury rejected these claims. Noting that Treasury has a contract with the savings bond owners, and is obligated to pay these owners in perpetuity when the bonds are presented for payment, Treasury informed the states that they must obtain title to the bonds and then apply to Treasury for payment under existing procedures. These procedures require claimants to surrender the physical bond or provide evidence that the bond has been lost, stolen, or destroyed. Treasury's 2004 letters specifically said that the states must possess the bonds they seek to redeem.3

Several of these states sued Treasury to claim the proceeds of all matured, unredeemed bonds registered to persons with addresses in their states. See New Jersey v. United States Treasury, 684 F.3d 382 (3rd Cir. 2012). In New Jersey, the United States Court of Appeals for the Third Circuit considered the validity of state statutes that deemed savings bonds to be “abandoned” if the owners did not redeem their bonds by a certain time after maturity. Relying on their own statutes, the states argued that they were entitled to take custody of the proceeds of the unredeemed bonds, and upon taking custody the states would become the entity responsible for paying the bond owners.

The Third Circuit rejected the states' argument, explaining that the state unclaimed property statutes conflict with federal law in many ways. See New Jersey, 684 F.3d at 407-408. The court emphasized that, in advancing the goal of making the bonds “attractive to savers and investors,” Free, 369 U.S. at 669, Congress had authorized Treasury to implement regulations specifying that “owners of savings bonds may keep the bonds after maturity.” 31 U.S.C. 3105(b)(2)(A). The states' unclaimed property laws, by contrast, specified that matured bonds are abandoned and their proceeds are subject to the laws if not redeemed within a time period as short as one year after maturity. New Jersey, 684 F.3d at 407-408. Declaring the laws preempted, the Third Circuit observed that the state laws purported to alter the terms of the contracts between the United States and the bond owners, and potentially could make the United States subject to multiple obligations on a single bond. Id. at 408-409.

Beginning in 2000, certain states enacted title escheat laws specifically for savings bonds that the states deemed to be “unclaimed” or “abandoned.” Pursuant to these title escheat laws, states have attempted to claim title to bonds in their possession, as well as to a broad class of bonds the states do not possess. Kansas enacted the first statute in 2000. Other states enacted their laws more recently. Iowa, Kentucky, Louisiana, Mississippi, Missouri, North Carolina, and South Dakota enacted their statutes in 2014. Arkansas, Florida, Georgia, Indiana, Maine, New Hampshire, Ohio, and South Carolina enacted their statutes in 2015.

These title escheat statutes raise similar concerns to the custody escheat statutes that the Third Circuit declared preempted in New Jersey. Under the title escheat statutes, states presume a savings bond to be abandoned if it has not been redeemed by a certain time. The bonds are presumed abandoned even if they have not matured and are in the owner's possession, without regard to the owner's intention to redeem them later or to pass them along to a registered beneficiary or heir. In Louisiana, for example, the state presumes that a bond is abandoned if it has not been redeemed between eight and eighteen years after issuance (depending on the bond series), long before the bond even matures.

Under many of these laws, states may initiate an escheat proceeding to claim any bonds that are presumed abandoned; for bonds that a state does not possess, the state often publishes a statement in local newspapers of its intention to claim title to bonds of a particular description, and requires bond owners to respond to the escheat proceeding in order to protect their ownership of the bonds. Bond owners are not parties to the escheat proceeding, and may never learn that the state is attempting to claim title over their bonds, especially if they live out-of-state. To avoid escheat, savings bond owners would need to monitor state laws, newspapers, and judicial proceedings in states where they may not live in order to protect their rights.

Despite the broad reach of these title escheat statutes, state law can only affect savings bond ownership to the extent allowed by federal regulation. Treasury's savings bond regulations determine ownership, describing in detail the rights of registered owners and their successors, including the right to hold paper bonds indefinitely. States do not have any explicit rights under these federal regulations to obtain title to savings bonds through a state escheat proceeding. To the extent that state escheat statutes purport to convey title to savings bonds in conflict with federal law, the escheat statutes would be preempted. See, e.g., Free v. Bland, 369 U.S. 663 (1962); New Jersey v. U.S. Dept. of Treasury, 684 F.3d 382, 407-408 (3rd Cir. 2012) (state unclaimed property laws preempted by federal statutes and savings bond regulations).

The new title escheat statutes also frustrate the objectives and operations of the federal savings bond program by creating the potential for multiple claims over the same bonds. Under these state statutes, a state may attempt to claim bonds that are still in the possession of registered owners, who can submit them for payment at any time. A state may also attempt to claim bonds that are in the possession of another state, where both states have a claim to title under their own state laws. State laws may define “abandonment” in different ways, with an advantage going to the state that can claim escheat title soonest. The potential for competing claims exposes Treasury to the risk of double-payment and costly litigation, as well as threatens the vested rights of bond owners.

Under the current savings bond regulations, Treasury has informed several states by letter that their title escheat claims will not be honored for bonds they do not possess. Given the recent increase in escheat laws specifically addressing savings bonds, the time is ripe for Treasury to clarify its prior statements on escheat and to describe more formally the criteria Treasury will use to evaluate escheat claims. Through a uniform federal rule governing title escheat claims, Treasury will provide formal notice to all states about the escheat claims it will recognize and how it will protect the rights of bond owners still in possession of their savings bonds.

Treasury voluntarily sought public comment on the proposed rule for 45 days to assist the agency in giving full consideration to the matters discussed in the proposed rule. We received comments on behalf of six state officials and associations:

1. National Association of Unclaimed Property Administrators.

2. National Association of State Treasurers.

3. Joint comments from state officials in Kansas, Louisiana, South Dakota, Pennsylvania, Mississippi, Kentucky, North Dakota, Iowa, South Carolina, and Maine.

4. The Treasurer of North Carolina.

5. The Treasurer of Missouri.

6. The State Auditor of Arkansas.

Comment: Several commenters urged Treasury to withdraw the proposed rule because it would hinder states' efforts to “reunite” bondholders with their unredeemed, matured savings bonds. In the commenters' view, bonds that have not been redeemed for some period after maturity are forgotten, abandoned, or lost. States should have the role of locating bond owners, according to the commenters, in part because states already have effective unclaimed property programs and in part because the United States does not have an incentive to locate bond owners. Because the proposed rule does not allow states to take title to bonds they do not possess, the commenters contend that states cannot assist in locating most owners of matured, unredeemed bonds. This disadvantages bond owners and discourages the public from purchasing new savings bonds, according to the commenters.

Response: The proposed rule is designed to protect the rights of savings bond owners, which are safeguarded by Treasury regulations and the savings bond contract. Under these regulations, bond owners have the contractual right to retain their bonds indefinitely, to pass them along to registered co-owners, beneficiaries, heirs, and other successors, and to present them for payment by the United States government. The proposed rule protects these rights by explicitly limiting states' ability to claim title and the right to payment for themselves. Contrary to the assertion of the commenters, there is no need to “reunite” the bond owners with their U.S. savings bonds, which remain in the hands of their registered owners; the regulation clarifies that Treasury will not consider a state's request to redeem a bond that the state does not possess.

Additionally, the commenters emphasized that state unclaimed property programs will attempt to locate savings bond owners after a state claims title to their bonds. The rigor of state efforts to locate bond owners, however, would be outside federal control. Once in possession of bond proceeds, states have little incentive to locate a bond's former owner, particularly if that owner lives in another state. In addition, states may impose burdensome processes on former owners who seek payment, and may not pay former owners in full. The law in Arkansas, for example, only provides that a state “may” pay a claim from a former bond owner after deducting certain expenses from the payment. Ark. Code Ann. § 18-28-231(g)(2)(A). A person who owns a savings bond expects to be paid in full by the federal government, not by a state that has taken title to the owner's unredeemed bond.

Treasury recognizes that savings bonds can be abandoned, with no one eligible under Treasury regulations to redeem them. States are encouraged to assist in locating the owners of bonds in the states' possession, and through advertising and other methods to persuade their citizens to redeem savings bonds that have matured. These efforts can continue without impairing a bond owner's title and rights under the savings bond contract. The commenters did not offer any evidence, however, to support their claim that matured, unredeemed bonds are necessarily lost or abandoned. Based on its contact with tens of thousands of bond owners, Treasury has learned that many bond owners choose to retain their bonds after maturity for a variety of personal and financial reasons. To protect the rights of these bond owners, Treasury has not made any changes to the proposed regulation in response to this comment.

Comment: Several commenters asserted that the proposed rule exceeds Treasury's legal authority by preempting state property law regimes. In the commenters' view, states have the right to determine when property is unclaimed, and Treasury's proposed rule would unduly limit this right by allowing Treasury to scrutinize state escheat judgments and by preventing states from taking title to bonds that are not in the state's possession. The commenters urged that states be allowed to determine when property is abandoned, and to submit claims for bonds that are not in their possession.

Response: The ownership of savings bonds arises from Treasury's savings bond regulations, which have been issued under an explicit grant of authority from Congress. 31 U.S.C. 3105. Under these regulations, the owner has a contract with the federal government that defines not only the registered owner's rights, but also those of successors specified in the regulations, such as a beneficiary named on the bond or the bond owner's estate. Federal courts have upheld these federal rules of succession against contrary claims founded on state law. See, e.g., Free v. Bland, 369 U.S. 663 (1962).

Treasury has long recognized that savings bonds can be abandoned, particularly in the context of a deceased person without heirs. When no person appears able under Treasury regulations to satisfy the requirements for payment, and the state can establish that a bond has been abandoned, Treasury has allowed a state to escheat the bond and submit it for payment. This does not interfere with any rights protected by the savings bond regulations, because no one else is eligible under the Treasury regulations to receive payment. Treasury has allowed states to redeem bonds belonging to a deceased owner under 31 CFR part 315, subpart L, and bonds in a state's possession when the state can establish that they are abandoned and can satisfy the requirements for a waiver under 31 CFR 315.90.

The definition of abandonment, however, cannot be left entirely to states because of the potential for states to impair the rights of ownership provided by federal law. As the United States General Accounting Office (GAO) explained in a 1989 report, the amounts that the United States owes to owners of matured savings bonds are not considered “unclaimed because these moneys are currently payable to the rightful owners upon presentation of a proper claim and without any time limitation.” 4 If states are allowed to define when a bond is abandoned or unclaimed, the states could impose requirements on bond owners that are outside the savings bond regulations, such as a requirement to redeem the bond within a certain time after issuance, or to maintain some active communication with the state or Treasury to prove the bond owner's continuing interest in the bond. Persons holding matured bonds with an expectation that they can be redeemed anytime—an expectation reasonably based on the savings bond regulations—should not be required to consult state law to determine if their federal property rights are protected. Because the ownership rights for savings bonds arise under federal law, they cannot be taken away by a contrary state law.

For this reason, Treasury has required more evidence of abandonment than is required under some state laws. While some states presume that a bond is abandoned if it has not been redeemed within a certain time after issuance, Treasury has required positive evidence that the owner has relinquished a claim over the bond. In particular cases, this evidence has included the state's physical possession of the bond and affidavits showing that the registered owner did not seek to claim it after notice. When the evidence of abandonment is sufficient, Treasury is able to recognize a state's claim to title under the waiver provisions of 31 CFR 315.90, 353.90, and 360.90 (depending on the bond series). Under these provisions, Treasury may waive a savings bond regulation if (a) the waiver would not be inconsistent with law or equity, (b) the waiver would not impair any existing rights, and (c) Treasury is satisfied that the waiver would not subject the United States to any substantial expense or liability.

The proposed rule disallows escheat claims for “unclaimed” bonds that are not in a state's possession in part because states cannot produce sufficient evidence that these bonds are abandoned. States typically have little information about bonds that are not in their possession. In the claims reviewed by Treasury, states could not specify the original or current owner of these bonds, their physical location, or the evidence that bonds have been abandoned by their owner. Instead, states identified these bonds by general description, typically the bond series, the date range when the bonds were issued, and the state recorded in the registration. The states presumed that the bonds were abandoned based on a deadline in state law, a concept that is alien to Treasury's savings bond regulations. In contrast, a state in possession of a bond may be able to show that the bond is abandoned. Often, a state acquires possession of the bond from a bank or other entity, which made unsuccessful efforts to return the bond to its owner. The fact that a state possesses the bond is itself evidence, though not conclusive, that the bond has been abandoned. Such evidence is unavailable when a state does not possess the bonds.

Based on Treasury's review of several claims, a state escheat proceeding produces little or no evidence of actual abandonment for bonds that are not in the state's possession. At the outset, a state will publish a general notice in local newspapers that the state is initiating an escheat proceeding for a class of bonds. These notices are a mere formality. The notice does not list the bond owners' names. Bond owners in possession of their bonds have no reason to search for their bonds in a listing of “unclaimed” property. Bond owners may not reside in the state initiating escheat proceedings or have any connection to that state. In these circumstances, few if any bond owners are likely to see the notice and come forward in time to contest the state's claim to their bonds. When a state court issues an uncontested finding that such bonds are “unclaimed” or “abandoned” under such a statute, there is an insufficient basis to conclude that owners have actually abandoned their claim to the bonds.

Some commenters asserted that states should be allowed under 31 CFR parts 315, 353, and 360, subpart F, to submit evidence that bonds they have escheated have been lost, stolen, or destroyed. Treasury does not accept the commenters' unproven assumption that a bond is necessarily lost, stolen, or destroyed simply because it has not been redeemed by a date specified in a state escheat law. If an unforeseen instance arises in which a state escheats a bond that it cannot surrender for payment, and the state can show particularized evidence about that bond as required in subpart F, Treasury can consider that request under the waiver provisions in 31 CFR 315.90, 353.90, or 360.90. The proposed rule is consistent with the rights of bond owners safeguarded by Treasury's current savings bond regulations. Accordingly, no changes have been made to the rule in response to this comment.

Comment: Several commenters argued that the preamble and proposed rule take a position on escheat that is at odds with past statements, where Treasury acknowledged that it would recognize state escheat claims to the title of savings bonds. The commenters specifically cited statements in 1952, 1983, and a brief filed on behalf of the United States opposing certiorari in New Jersey v. U.S. Dept. of Treasury, a case involving custody escheat claims.

Response: State escheat claims are not explicitly recognized in the savings bond regulations. While the regulations specifically acknowledge the rights of beneficiaries, heirs, and others to succeed to ownership of savings bonds, the ability of states to claim title by escheat is not mentioned. However, Treasury has said that it will recognize state claims to title in savings bonds in particular contexts.

Treasury's statement on escheat in 1952, the earliest cited by commenters, arose in the context of a state seeking custody of bonds in its possession. In that statement, the Secretary of the Treasury addressed a request by the Comptroller of New York to redeem four United States savings bonds that came into the state's possession after the registered owner died as a ward of the state, leaving no heirs. The Secretary informed the Comptroller that Treasury would not redeem the bonds in the state's possession unless the state obtained title to the bonds based on an escheat judgment. The Secretary's 1952 letter did not suggest that a state could demand redemption of U.S. savings bonds that the state did not possess.

The commenters also refer to a statement first posted on Treasury's Web site in 2000, which discusses Treasury's views on escheat claims when a state seeks title to bonds in its possession, and to a 1983 letter that discusses escheat in the context of a state's claim for custody of “abandoned bonds and notes.” The 1983 letter may not concern savings bonds at all, but rather bonds and notes that Treasury has issued under different legal authority. Neither of these statements addresses claims by states to the title of savings bonds that are still in the registered owner's possession.

The commenters also cite to a brief filed by the United States in a case involving state claims to the custody of savings bonds. This brief, opposing certiorari in the Supreme Court, does not advance a new position on escheat. Rather, it explains Treasury's longstanding view that states cannot escheat savings bonds under custody escheat statutes. In a background section, the brief summarizes the views expressed in the 1952 bulletin, the 1983 letter, and the notice on Treasury's Web site, and notes the general proposition that a state cannot receive payment without completing an escheat proceeding that satisfies due process and that awards title to the bond to the state. The litigation did not concern, and the Solicitor General did not address, the full criteria that Treasury would apply under a title escheat statute when a state seeks to redeem savings bonds that it does not possess.

The commenters did not mention the letters that Treasury sent to states in 2004 and 2006 addressing the states' demand that Treasury pay them the proceeds of all matured, unredeemed savings held by residents of those states. Three commenters on the proposed rule, North Carolina, South Dakota and Kentucky, were recipients of these letters. As noted earlier, Treasury's 2004 and 2006 letters rejected the states' claims to bonds they did not possess. The letters specifically informed the states that they must obtain title to the bonds and then apply to Treasury for payment under existing procedures. These procedures require claimants to surrender the physical bond or provide evidence that the bond has been lost, stolen, or destroyed. The 2004 letters specifically said that the states must possess the bonds they seek to redeem.

The proposed rule does not conflict with the statements cited by commenters or with Treasury's 2004 and 2006 letters. The proposed rule permits states to escheat savings bonds in their possession when they meet specified criteria. It also permits states to escheat the savings bonds of owners who die without successors named in the regulations, when the states meet the requirements that apply to all claimants from deceased owners, co-owners, and beneficiaries. The proposed rule does not permit states to escheat bonds that they do not possess, a position that is consistent with letters sent to states in 2004 and 2006, and more recent letters sent to Kansas and other states.

The proposed rule is also consistent with Treasury's longstanding view that a bond owner can redeem matured bonds in the owner's possession at any time. It does not conflict with the statements cited by commenters, because those statements did not specifically address a title escheat claim for bonds that are not in a state's possession. To the extent the statements cited by commenters require interpretation, this preamble and the final rule clarify that Treasury will not recognize every state escheat judgment purporting to convey title over savings bonds. In keeping with Treasury's longstanding position, savings bond owners remain entitled to submit their paper bonds to Treasury for payment indefinitely, notwithstanding a state escheat judgment that purports to give the state title over bonds that the state does possess.

The statements on escheat cited by commenters also did not excuse states from satisfying Treasury's payment requirements. Generally, Treasury regulations require a claimant seeking payment to surrender the bond. See, e.g., 31 CFR parts 315 and 353, subpart H, and 31 CFR 316.10. If a claimant cannot surrender the bond, the claimant must provide satisfactory evidence of the loss, theft, or destruction of the bond, or a satisfactory explanation of the mutilation or defacement, as well as sufficient information to identify the bond by serial number. See, e.g., 31 CFR parts 315 and 353, subpart F. Treasury will not consider any claim for a missing bond that is filed more than six years after a bond's final maturity, unless the claimant supplies the serial number of the bond. 31 CFR 315.29(c) and 353.29(c). When a state does not possess a bond, and does not have specific information about a bond's location, history, or serial numbers, the state cannot satisfy Treasury's requirements for payment. The proposed rule is consistent with the payment requirements in Treasury's existing savings bond regulations.

The commenters seem to prefer that Treasury consider their escheat claims under 31 CFR parts 315, 353, or 360 subpart E (depending on the bond series), instead of the waiver provisions in sections 315.90, 353.90, or 360.90. Treasury has considered the commenters' arguments carefully. Subpart E provides in part that Treasury “will recognize a claim against an owner of a savings bond and conflicting claims of ownership of, or interest in, a bond between coowners or between the registered owner and the beneficiary, if established by valid, judicial proceedings, but only as specifically provided in this subpart.” See, e.g., 31 CFR 315.20(b). The subpart then describes the types of adverse claims covered by this subpart (payment to judgment creditors, divorce, and gifts causa mortis), and the type of evidence necessary to establish the validity of judicial proceedings. Treasury has the right to require other evidence to establish the validity of judicial proceedings under sections 315.91(a), 353.91(a), and 360.91.

As stated in the preamble to the proposed rule and other public documents, Treasury interprets subpart E to apply only to the adverse proceedings specifically listed there. Escheat proceedings are not among the listed proceedings, and because they are in rem proceedings, they do not qualify as “a claim against an owner of a savings bond” in section 315.20(b), 353.20(b), or 360.20(b). State escheat proceedings are claims against an intangible asset, which is why state courts do not obtain jurisdiction over the bond owner in order to issue an escheat judgment. This position is not inconsistent with the 1952 letter, the 1983 letter, or the 2000 Web site entry that the commenters cite, because none of these documents cites to subpart E or any specific regulation that allows states to claim title by escheat. Treasury's letters to states in 2004 and 2006 regarding escheat also did not cite to subpart E as the basis for state escheat claims. To the extent there is any ambiguity in Treasury's prior statements on the applicability of subpart E to escheat proceedings, the final rule is intended to clarify these statements: Subpart E does not apply to escheat proceedings.

But even when subpart E does apply, it only applies to “valid” judicial proceedings. Treasury has never maintained that it would recognize every title escheat judgment, under subpart E or any other savings bond regulation. When evaluating the validity of a proceeding under subpart E, Treasury expects more than evidence that a state judgment was entered. Treasury may require that a claimant submit any evidence pertaining to the judgment under 31 CFR 315.23, 315.91, 353.23, 353.91, 360.23, and 360.91. Treasury may require evidence, for example, that the proceeding provided due process and that the judgment does not interfere with the rights of bond owners. A state judgment is not valid under subpart E, for example, if it “gives effect to an attempted voluntary transfer inter vivos of a bond, or a judicial determination that impairs the rights of survivorship conferred by these regulations upon a coowner or beneficiary.” See, e.g., 31 CFR 315.20(a); see also Free v. Bland, 368 U.S. 663 (1962). A state judgment also will not be valid if it purports to convey custody over bonds to the state. See New Jersey v. U.S. Dept. of Treasury, 684 F.3d 382 (3rd Cir. 2012). These examples illustrate that the validity of a state judgment for purposes of subpart E depends in part on its substantive compliance with law.

To the extent there is any ambiguity about the scope of “valid” proceedings under subpart E, the final rule has been amended to make clear that Treasury may review judicial proceedings to determine whether they provided due process, complied with the savings bond regulations, and complied with relevant state law. No other changes have been made to the proposed rule in response to this comment.

Comment: Several commenters describe the proposed rule as a “convenient litigating position,” which they believe should not be applied in the litigation with Kansas.

Response: The regulation addresses escheat claims from all states, and reflects Treasury's longstanding positions on the rights of bond owners. It also reflects Treasury's consideration of new title escheat statutes and new claims for bonds that a state does not possess. No changes have been made to the regulation in response to this comment.

Comment: Several commenters questioned Treasury's authority to review state escheat judgments. According to the commenters, only the Supreme Court has jurisdiction over appeals from final state court judgments, relying on Lance v. Dennis, 546 U.S. 459 (2006), a case construing the bounds of federal jurisdiction under 28 U.S.C. 1257.

Response: Contrary to the assertions of the commenters, Lance is inapposite because Treasury's consideration of the savings bond redemption request does not constitute judicial appellate review. To be sure, the United States Supreme Court has exclusive jurisdiction to hear appeals from final state court judgments under 28 U.S.C. 1257, but that principle only applies when invoked against a losing party in the underlying state judicial action. Lance, 546 U.S. at 464. Because Treasury is not a party to state escheat proceedings, and is not in a position to request Supreme Court review of the state judgment, Lance and 28 U.S.C. 1257 do not apply here. No changes have been made to the regulation in response to this comment.

Comment: One commenter viewed the savings bond regulations as an unconstitutional delegation of legislative authority.

Response: Under its constitutional power to borrow money, Congress has authorized the Secretary of the Treasury, with approval of the President, to issue savings bonds in such form and under such conditions as he may prescribe. Free v. Bland, 369 U.S. 663, 666-667 (1962); 31 U.S.C. 3105. This authority allows Treasury to issue regulations prescribing restrictions on transfer and conditions governing redemption. 31 U.S.C. 3105(c). The proposed savings bond regulations fit within this authority. No changes have been made to the regulation in response to this comment.

Comment: One commenter asserted that the proposed rule is a “major rule” subject to the Congressional Review Act (CRA), 5 U.S.C. 804. The commenter claimed that the rule would substantially decrease the likelihood that bond owners will “recover” over $16,000,000,000 in matured savings bonds, thereby surpassing the Act's $100,000,000 threshold for economic impact. The commenter also asserted that the proposed rule could substantially increase costs for states seeking to restore unclaimed property to their citizens.

Response: The CRA defines a “major rule” as any rule that the Office of Management and Budget finds has resulted or is likely to result in “(A) an annual effect on the economy of $100,000,000 or more; (B) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or (C) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.” 5 U.S.C. 804(2). The commenter asserted that the rule triggers the first two definitions of a major rule.

The rule does not alter the United States' obligation to redeem savings bonds in accordance with the savings bond regulations. Current bond owners may continue to surrender their matured, unredeemed bonds to Treasury for payment, as many people do every year. Because the rule protects the existing rights of bond owners under the savings bond contract, its effect on the economy does not meet the threshold test for a major rule.

The commenter did not offer evidence that the proposed rule will cause a major increase in costs or prices for state unclaimed property programs. When a state seeks to escheat bonds in a state's possession, Treasury's rule would require states to show that bonds are actually abandoned and that the state escheat proceeding provided due process and was consistent with federal and state law. Treasury does not expect that this requirement will impose major, new costs on states.

No changes have been made in the proposed rule in response to this comment.

The final rule describes when Treasury will recognize an escheat judgment vesting title in the state to abandoned savings bonds. For bonds in the state's possession, the final rule requires a state to demonstrate that it made reasonable efforts to provide actual and constructive notice of the state escheat proceeding to all persons listed on the face of the bond and all persons who may have an interest in the bond. The state must also demonstrate that those persons had an opportunity to be heard before the escheat judgment was entered. The steps normally required in a state escheat proceeding may be adequate to establish abandonment, but Treasury is not bound by these proceedings. Because state escheat rules may vary and state escheat proceedings are often uncontested, Treasury reserves the right to require additional evidence of abandonment. Existing regulations already allow Treasury to require a bond of indemnity, with or without surety, in any case for the protection of the United States' interests. See 31 CFR 315.91, 353.91, and 360.91. These regulations remain in effect.

The final regulation also makes explicit that Treasury will not recognize escheat judgments that convey custody, but not title, to a state. This principle is well established in Federal case law and has been incorporated into the final regulation.

Treasury's decision to recognize escheat judgments for bonds in a state's possession will be a discretionary matter, because the breadth of state escheat laws is not within Treasury's control. In exercising discretion, Treasury will consider whether a state's escheat claim impairs any existing rights under Treasury regulations and will assess the risk to Treasury of duplicative payment claims. Requiring states to possess the bonds that they seek to redeem protects these interests, and enables Treasury to locate records of the bonds for which the state seeks payment. Treasury will also assess whether the state has followed its own escheat rules, to ensure (for example) that a state judgment only covers bonds that were eligible for escheat.

The final rule on escheat claims to unclaimed property does not apply when a state claims title to a definitive savings bond as the heir to a deceased owner. Treasury has long recognized circumstances in which a state may obtain title to a savings bond by escheat when the bond owner has died. These escheat claims will be considered under existing savings bond regulations that pertain to the estates of deceased owners, co-owners, and beneficiaries. See 31 CFR part 315, subpart L; part 353, subpart L; and part 360, subpart K.

The final rule does reflect one change in the proposed rule. The final rule provides additional information about how Treasury will assess whether a state proceeding is “valid” under 31 CFR 315.20, 353.20, and 360.20. Under the final rule, Treasury may require any evidence to establish the validity of judicial proceedings, such as evidence that the proceeding provided due process, complied with this Part, and complied with relevant state law.

Because this rule relates to United States securities, which are contracts between Treasury and the owner of the security, this rulemaking falls within the contract exception to the APA at 5 U.S.C. 553(a)(2). Treasury, however, voluntarily sought public comment to assist the agency in giving full consideration to the matters discussed in the proposed rule. Treasury fully considered and responded to those comments in the preamble to this final rule.

This rule is not a major rule pursuant to the CRA, 5 U.S.C. 801 et seq. It is not expected to lead to any of the results listed in 5 U.S.C. 804(2). This rule will take effect upon publication in the Federal Register.

We ask for no collections of information in this final rule. Therefore, the PRA, 44 U.S.C. 3501 et seq. does not apply.

The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., does not apply to this rulemaking because, pursuant to 5 U.S.C. 553(a)(2), it is not required to be issued with notice and opportunity for public comment. The rule will not have a significant economic impact on a substantial number of small entities. The rule primarily affects states and is not expected to have a direct impact on any small entities.

This rule is not a significant regulatory action pursuant to Executive Order 12866.

Accordingly, for the reasons set out in the preamble, 31 CFR parts 315, 353, and 360 are amended to read as follows:

The AK Railroad Bridge, across Arthur Kill, mile 11.6, between Staten Island, New York and Elizabeth, New Jersey has a vertical clearance in the closed position of 31 feet at Mean High Water and 35 feet at Mean Low Water. The existing drawbridge operation regulations are listed at 33 CFR 117.702.

The waterway supports both commercial and recreational navigation of various vessel sizes. The operator of the bridge, Conrail, requested a temporary deviation to facilitate scheduled maintenance and to replace the tie and miter rail on the bridge. The bridge must remain in the closed position to perform this maintenance.

Under this temporary deviation, the draw may remain in the closed position as follows:

Vessels able to pass through the bridge in the closed positions may do so at anytime. There are no alternate routes for vessel traffic. The bridge can be opened in an emergency. The Coast Guard will also inform the users of the waterway through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessels can arrange their transits to minimize any impact caused by the temporary deviation.

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

The Blynman (SR 127) Bridge across the Annisquam River and Blynman Canal, mile 0.0, at Gloucester, Massachusetts, has a vertical clearance in the closed position of 8.2 feet at mean high water and 16 feet at mean low water. The existing bridge operating regulations are found at 33 CFR 117.586.

The owner of the bridge, Massachusetts Department of Transportation, requested a temporary deviation from the normal operating schedule to open on signal after at least a two hour advance notice is provided between the hours of 8 p.m. to 4 a.m. for the period of January 1, 2016 through April 30, 2016.

The waterways are transited primarily by seasonal recreation vessels of various sizes. Historical records indicate infrequent requests for openings occur during this timeframe. Vessels able to pass through the bridge in the closed position may do so at anytime. The bridge will not be able to open for emergencies however the northern entrance to the Annisquam River can be used as an alternate route for vessels unable to pass through the bridge in closed positions. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.

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

Purpose: As noted above, the revised rule benefits the public by providing notice regarding classification changes adopted by the Nice Agreement that will become effective on January 1, 2016.

Summary of Major Provisions: The USPTO is revising § 6.1 in part 6 of title 37 of the Code of Federal Regulations to incorporate classification changes and modifications that will become effective January 1, 2016, or that appeared in earlier revisions of the Nice Agreement, as listed in the International Classification of Goods and Services for the Purposes of the Registration of Marks (10th ed., 2016) (Nice Classification), published by WIPO. In addition, the USPTO is making minor revisions to punctuation and grammar so that § 6.1 will conform to what appears in the Nice Agreement.

The Nice Agreement is a multilateral treaty, administered by WIPO, that establishes the international classification of goods and services for the purposes of registering trademarks and service marks. As of September 1, 1973, this international classification system is the controlling system used by the United States, and it applies to all applications filed on or after September 1, 1973, and their resulting registrations, for all statutory purposes. See 37 CFR 2.85(a). As of January 1, 2015, eighty-four states are parties to the Nice Agreement. Every signatory to the Nice Agreement must utilize the international classification system.

Each state party to the Nice Agreement is represented in the Committee of Experts of the Nice Union (Committee of Experts), which meets annually to vote on proposed changes to the Nice Classification. Any state that is a party to the Nice Agreement may submit proposals for consideration by the other members in accordance with agreed-upon rules of procedure. Proposals are currently submitted on an annual basis to an electronic forum on the WIPO Web site, commented upon, modified, and compiled by WIPO for further discussion and voting at the annual Committee of Experts meeting.

In 2013, the Committee of Experts began annual revisions to the Nice Classification. The annual revisions, which are published electronically and enter into force on January 1 each year, are referred to as versions and identified by edition number and year of the effective date (e.g., “Nice Classification, 10th edition, version 2013” or “NCL 10-2013”). Each annual version includes all changes adopted by the Committee of Experts since the adoption of the previous version. The changes consist of the addition of new goods and services to, and deletion of goods and services from, the Alphabetical List, and any modifications to the wording in the Alphabetical List, the class headings, and the explanatory notes that do not involve the transfer of goods or services from one class to another. New editions of the Nice Classification continue to be published electronically and include all changes adopted annually since the previous edition, as well as goods or services transferred from one class to another or new classes that are created.

The annual revisions contained in this final rule, which consist of modifications to the class headings, have been incorporated into the Nice Agreement by the Committee of Experts. As a signatory to the Nice Agreement, the United States adopts these revisions pursuant to Article 1.

Costs and Benefits: This rulemaking is not economically significant under Executive Order 12866 (Sept. 30, 1993).

The Office is revising § 6.1 as follows:

The wording “metals in foil and powder form for painters, decorators, printers and artists” in Class 2 is amended to “metals in foil and powder form for use in painting, decorating, printing and art.”

The wording “Pharmaceutical and veterinary preparations” in Class 5 is amended to “Pharmaceuticals, medical and veterinary preparations.”

The wording “goods of common metal not included in other classes” in Class 6 is deleted.

The comma after “apparatus and instruments” in Class 10 is changed to a semicolon.

The wording “and goods in precious metals or coated therewith, not included in other classes” in Class 14 is deleted.

The wording “Paper, cardboard and goods made from these materials, not included in other classes” in Class 16 is amended to “Paper and cardboard.” The wording “(not included in other classes)” is deleted from the phrase “plastic materials for packaging (not included in other classes).”

The wording “Rubber, gutta-percha, gum, asbestos, mica and goods made from these materials and not included in other classes” in Class 17 is amended to “Unprocessed and semi-processed rubber, gutta-percha, gum, asbestos, mica and substitutes for all these materials.”

The wording “and goods made of these materials and not included in other classes” is deleted from the phrase “Leather and imitations of leather, and goods made of these materials and not included in other classes” in Class 18.

The wording “goods (not included in other classes) of wood, cork, reed, cane, wicker, horn, bone, ivory, whalebone, shell, amber, mother-of-pearl, meerschaum and substitutes for all these materials, or of plastics” in Class 20 is amended to “unworked or semi-worked bone, horn, ivory, whalebone or mother-of-pearl; shells; meerschaum; yellow amber.”

The wording “not included in other classes” is deleted from the phrase “glassware, porcelain and earthenware not included in other classes” in Class 21.

The wording “Ropes, string, nets, tents, awnings, tarpaulins, sails, sacks and bags (not included in other classes);” in Class 22 is amended to “Ropes and string; nets; tents, awnings and tarpaulins; sails;” and the wording “paper, cardboard,” is added before the term “rubber” in the phrase “padding and stuffing materials (except of rubber or plastics).”

The wording “Textiles and textile goods, not included in other classes” is replaced with “Textiles and substitutes for textiles” in Class 24.

The wording “not included in other classes” is deleted from the phrase “gymnastic and sporting articles not included in other classes” in Class 28.

The term “pastry” is amended to “pastries” in Class 30. The term “edible” is inserted before the term “ices.”

The wording “Grains and agricultural, horticultural and forestry products not included in other classes” and “seeds” in Class 31 is amended to “Agricultural, horticultural and forestry products; raw and unprocessed grains and seeds.”

Administrative Procedure Act: The changes in this rulemaking involve rules of agency practice and procedure, and/or interpretive rules. See Perez v. Mortg. Bankers Ass'n, 135 S. Ct. 1199, 1204 (2015) (interpretive rules “advise the public of the agency's construction of the statutes and rules which it administers”) (citation and internal quotation marks omitted); Nat'l Org. of Veterans' Advocates v. Sec'y of Veterans Affairs, 260 F.3d 1365, 1375 (Fed. Cir. 2001) (rule that clarifies interpretation of a statute is interpretive); Bachow Commc'ns Inc. v. FCC, 237 F.3d 683, 690 (D.C. Cir. 2001) (rules governing an application process are procedural under the Administrative Procedure Act); Inova Alexandria Hosp. v. Shalala, 244 F.3d 342, 350 (4th Cir. 2001) (rules for handling appeals were procedural where they did not change the substantive standard for reviewing claims).

Accordingly, prior notice and opportunity for public comment for the changes in this rulemaking are not required pursuant to 5 U.S.C. 553(b) or (c), or any other law. See Perez, 135 S. Ct. at 1206 (notice-and-comment procedures are required neither when an agency “issue[s] an initial interpretive rule” nor “when it amends or repeals that interpretive rule”); Cooper Techs. Co. v. Dudas, 536 F.3d 1330, 1336-37 (Fed. Cir. 2008) (stating that 5 U.S.C. 553, and thus 35 U.S.C. 2(b)(2)(B), does not require notice and comment rulemaking for “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice,” quoting 5 U.S.C. 553(b)(A)). The 30-day delay in effectiveness is not applicable because this rule is not a substantive rule as the changes in this rule have no impact on the standard for reviewing trademark applications. As discussed above, the changes in this rulemaking involve rules of agency practice and procedure, and consist of modifications to the class headings that are used to classify goods and services in the trademark-application process. These changes are administrative in nature and will have no substantive impact on the evaluation of a trademark application. The purpose of a delay in effectiveness is to allow affected parties time to modify their behaviors, businesses, or practices to come into compliance with new regulations. This rule imposes no additional requirements on the affected entities. Therefore, the requirement for a 30-day delay in effectiveness is not applicable, and the rule is made effective upon the date of publication.

Regulatory Flexibility Act: As prior notice and an opportunity for public comment are not required pursuant to 5 U.S.C. 553 or any other law, neither a Regulatory Flexibility Act analysis, nor a certification under the Regulatory Flexibility Act (5 U.S.C. 601, et seq.), is required. See 5 U.S.C. 603.

Executive Order 12866 (Regulatory Planning and Review): This rulemaking has been determined to be not significant for purposes of Executive Order 12866 (Sept. 30, 1993).

Executive Order 13563 (Improving Regulation and Regulatory Review): The USPTO has complied with Executive Order 13563 (Jan. 18, 2011). Specifically, the USPTO has, to the extent feasible and applicable: (1) Made a reasoned determination that the benefits justify the costs of the rule changes; (2) tailored the rules to impose the least burden on society consistent with obtaining the regulatory objectives; (3) selected a regulatory approach that maximizes net benefits; (4) specified performance objectives; (5) identified and assessed available alternatives; (6) provided the public with a meaningful opportunity to participate in the regulatory process, including soliciting the views of those likely affected prior to issuing a notice of proposed rulemaking, and provided on-line access to the rulemaking docket; (7) attempted to promote coordination, simplification, and harmonization across government agencies and identified goals designed to promote innovation; (8) considered approaches that reduce burdens and maintain flexibility and freedom of choice for the public; and (9) ensured the objectivity of scientific and technological information and processes, to the extent applicable.

Executive Order 13132 (Federalism): This rulemaking does not contain policies with federalism implications sufficient to warrant preparation of a Federalism Assessment under Executive Order 13132 (Aug. 4, 1999).

Unfunded Mandates Reform Act of 1995: The changes set forth in this rulemaking do not involve a Federal intergovernmental mandate that will result in the expenditure by State, local, and tribal governments, in the aggregate, of 100 million dollars (as adjusted) or more in any one year, or a Federal private sector mandate that will result in the expenditure by the private sector of 100 million dollars (as adjusted) or more in any one year, and will not significantly or uniquely affect small governments. Therefore, no actions are necessary under the provisions of the Unfunded Mandates Reform Act of 1995. See 2 U.S.C. 1501 et seq.

Paperwork Reduction Act: This final rule does not involve information collection requirements which are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

For the reasons given in the preamble and under the authority contained in 15 U.S.C. 1112, 1123 and 35 U.S.C. 2, as amended, the USPTO is amending part 6 of title 37 as follows:

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

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2015-0685 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 February 22, 2016. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2015-0685, by one of the following methods:

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

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

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

In the Federal Register of October 21, 2015 (80 FR 63731) (FRL-9935-29), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 4E8300) by the Tea Association of the U.S.A., Inc., 362 5th Avenue, Suite 801, New York, New York, 10001. The petition requested that 40 CFR 180.434 be amended by establishing a tolerance for residues of the fungicide propiconazole in or on tea at 4.0 parts per million (ppm). That document referenced a summary of the petition prepared by the Tea Association of the U.S.A., Inc., the registrant, which is available in the docket, http://www.regulations.gov. No comments concerning this tolerance action were received.

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

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

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

The primary target organ for propiconazole toxicity in animals is the liver. Increased liver weights were seen in mice after subchronic or chronic oral exposures to propiconazole. Liver lesions such as vacuolation of hepatocytes, ballooned liver cells, foci of enlarged hepatocytes, hypertrophy, and necrosis are characteristic of propiconazole toxicity in rats and mice. Decreased body weight gain was also seen in subchronic, chronic, developmental and reproductive studies in animal studies. Dogs appeared to be more sensitive to the localized toxicity of propiconazole as manifested by stomach irritations at 6 milligram/kilogram/day (mg/kg/day) and above.

In rabbits, developmental toxicity occurred at a higher dose than the maternally toxic dose, while in rats, developmental toxicity occurred at lower doses than maternal toxic doses. Increased incidences of rudimentary ribs occurred in rat and rabbit fetuses. Increased cleft palate malformations were noted in two studies in rats. In one published study in rats, developmental effects (malformations of the lung and kidneys, incomplete ossification of the skull, caudal vertebrae and digits, extra rib (14th rib), and missing sternbrae) were reported at doses that were not maternally toxic. In the 2-generation reproduction study in rats, offspring toxicity occurred at a higher dose than the parental toxic dose suggesting lower susceptibility of the offspring to the toxic doses of propiconazole.

The acute neurotoxicity study produced severe clinical signs of toxicity (decreased activity, cold, pale, decreased motor activity, etc.) in rats at the high dose of 300 milligram/kilogram (mg/kg). Limited clinical signs (piloerection, diarrhea, tip toe gait) were observed in the mid-dose animals (100 mg/kg), while no treatment related signs were observed at 30 mg/kg. The current acute dietary assessment for the general population is based on the no-observed-adverse-effect-level (NOAEL) of 30 mg/kg from the acute neurotoxicity study. A subchronic neurotoxicity study in rats did not produce neurotoxic signs at the highest dose tested that was associated with decreased body weight.

Propiconazole was negative for mutagenicity in the in vitro BALB/3T3 cell transformation assay, bacterial reverse mutation assay, Chinese hamster bone marrow chromosomal aberration assay, unscheduled DNA synthesis studies in human fibroblasts and primary rat hepatocytes, mitotic gene conversion assay, and the dominant lethal assay in mice. It caused proliferative changes in the rat liver with or without pretreatment with an initiator, like phenobarbital, a known liver tumor promoter. Liver enzyme induction studies with propiconazole in mice demonstrated that propiconazole is a strong phenobarbital type inducer of xenobiotic metabolizing enzymes. Hepatocellular proliferation studies in mice suggest that propiconazole induces cell proliferation followed by treatment-related hypertrophy in a manner similar to the known hypertrophic agent phenobarbital.

Propiconazole was carcinogenic to male mice but was not carcinogenic to rats or to female mice. The Agency classified propiconazole as a possible human carcinogen and recommended that, for the purpose of risk characterization, the reference dose (RfD) approach be used for quantification of human risk. Propiconazole is not genotoxic and this fact, together with special mechanistic studies, indicates that propiconazole is a threshold carcinogen. Propiconazole produced liver tumors in male mice only at a high dose that was toxic to the liver. At doses below the RfD, liver toxicity is not expected; therefore, tumors are also not expected.

Specific information on the studies received and the nature of the adverse effects caused by propiconazole as well as the NOAEL and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov in document, “Propiconazole Human Health Risk Assessment for the New Use of Propiconazole on Imported Tea” at pp. 41-46 in docket ID number EPA-HQ-OPP-2015-0685.

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

A summary of the toxicological endpoints for propiconazole used for human risk assessment is shown in Table 1.

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to propiconazole, EPA considered exposure under the petitioned-for tolerances as well as all existing propiconazole tolerances in 40 CFR 180.434. EPA assessed dietary exposures from propiconazole in food as follows:

i. Acute exposure. Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure. Such effects were identified for propiconazole. In estimating acute dietary exposure, EPA used food consumption information from the United States Department of Agriculture (USDA) National Health and Nutrition Examination Survey, What We Eat in America, (NHANES/WWEIA). This dietary survey was conducted from 2003 to 2008. As to residue levels in food, EPA conducted an acute dietary analysis for propiconazole residues of concern using tolerance levels and 100 percent crop treated (PCT) for all existing and proposed uses.

ii. Chronic exposure. In conducting the chronic dietary exposure assessment EPA used the food consumption data from the USDA NHANES/WWEIA. This dietary survey was conducted from 2003 to 2008. As to residue levels in food, EPA conducted a chronic dietary analysis for propiconazole residues of concern average field trial residues, tolerance levels and 100 PCT for all existing and proposed uses.

iii. Cancer. Based on the data summarized in Unit III.A., EPA has concluded that a nonlinear RfD approach is appropriate for assessing cancer risk to propiconazole. Cancer risk was assessed using the same exposure estimates as discussed in Unit III.C.1.ii., chronic exposure.

iv. Anticipated residue and percent crop treated (PCT) information. Section 408(b)(2)(E) of FFDCA authorizes EPA to use available data and information on the anticipated residue levels of pesticide residues in food and the actual levels of pesticide residues that have been measured in food. If EPA relies on such information, EPA must require pursuant to FFDCA section 408(f)(1) that data be provided 5 years after the tolerance is established, modified, or left in effect, demonstrating that the levels in food are not above the levels anticipated. For the present action, EPA will issue such data call-ins as are required by FFDCA section 408(b)(2)(E) and authorized under FFDCA section 408(f)(1). Data will be required to be submitted no later than 5 years from the date of issuance of these tolerances.

2. Dietary exposure from drinking water. The Agency used screening-level water exposure models in the dietary exposure analysis and risk assessment for propiconazole in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of propiconazole. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at http://www.epa.gov/oppefed1/models/water/index.htm.

The Agency does not expect any additional residues of propiconazole in drinking water as a result of the imported tea use. Therefore, the Agency is relying on the previous drinking water assessment for assessing propiconazole tolerances. The previously assessed turf EDWCs are approximately one order of magnitude higher and more protective than the EDWCs for the new use.

Based on the Surface Water Concentration Calculator (SWCC) and Pesticide Root Zone Model—Ground Water (PRZM-GW) models, the estimated drinking water concentrations (EDWCs) of propiconazole for acute exposures are estimated to be 35.2 parts per billion (ppb) for surface water and 37.9 ppb for ground water, and for chronic exposures are estimated to be 18.6 ppb for surface water and 35.1 ppb for ground water.

Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For acute dietary risk assessment, the water concentration value of 37.9 ppb was used to assess the contribution to drinking water. For chronic dietary risk assessment, the water concentration of value 35.1 ppb was used to assess the contribution to drinking water.

3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets).

Although there are no proposed residential uses associated with the imported tea use, propiconazole is currently registered for the following uses that could result in residential exposures: Turf, landscapes, ornamentals, and in paint. The highest incidental oral and dermal exposure scenarios are expected from residential use on turf. EPA assessed short-term risk to toddlers from incidental oral and dermal exposure as well as from post-application dermal exposure. The highest post application exposure from residential use on turf was used to assess risk to short-term aggregate exposures.

The only residential use scenario that will result in potential intermediate-term exposure to propiconazole is wood treatment, which the Agency assumes may result in dermal and incidental oral post-application exposures to children. Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at http://www.epa.gov/pesticides/trac/science/trac6a05.pdf.

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.”

Propiconazole is a member of the triazole-containing class of pesticides. Although conazoles act similarly in plants (fungi) by inhibiting ergosterol biosynthesis, there is not necessarily a relationship between their pesticidal activity and their mechanism of toxicity in mammals. Structural similarities do not constitute a common mechanism of toxicity. Evidence is needed to establish chemicals operate by the same, or essentially the same, sequence of major biochemical events (EPA, 2002). In conazoles, however, a variable pattern of toxicological responses is found; some are hepatotoxic and hepatocarcinogenic in mice. Some induce thyroid tumors in rats. Some induce developmental, reproductive, and neurological effects in rodents. Furthermore, the conazoles produce a diverse rand of biochemical events including altered cholesterol levels, stress responses, and altered DNA methylation. It is not clearly understood whether these biochemical events are directly connected to their toxicological outcomes.

Thus, there is currently no evidence to indicate that conazoles share common mechanisms of toxicity and EPA is not following a cumulative risk approach based on a common mechanism of toxicity for the conazoles. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at http://www.epa.gov/pesticides/cumulative.

Propiconazole is a triazole-derived pesticide. This class of compounds can form the common metabolite 1,2,4-triazole and two triazole conjugates (triazolylalanine and triazolylacetic acid). To support existing tolerances and to establish new tolerances for triazole-derivative pesticides, including propiconazole, EPA conducted a human health risk assessment for exposure to 1,2,4-triazole, triazolylalanine, and triazolylacetic acid resulting from the use of all current and pending uses of any triazole-derived fungicide. The risk assessment is a highly conservative, screening-level evaluation in terms of hazards associated with common metabolites (e.g., use of a maximum combination of uncertainty factors) and potential dietary and non-dietary exposures (i.e., high end estimates of both dietary and non-dietary exposures). The Agency retained a 3X for the LOAEL to NOAEL safety factor when the reproduction study was used. In addition, the Agency retained a 10X for the lack of studies including a DNT. The assessment includes evaluations of risks for various subgroups, including those comprised of infants and children. The Agency's complete risk assessment is found in the propiconazole reregistration docket at http://www.regulations.gov, Docket ID Number EPA-HQ-OPP-2005-0497.

An updated aggregate human health risk assessment for the common triazole metabolites 1,2,4-triazole (T), triazolylalanine (TA), triazolylacetic acid (TAA), and triazolylpyruvic acid (TP) was completed on April 9, 2015, in association with the registration requests for several triazole fungicides (propiconazole, difenoconazole, and flutriafol). That analysis concluded that risk estimates were below the Agency's level of concern for all population groups. This assessment may be found on http://www.regulations.gov by searching for the following title and docket ID number: “Common Triazole Metabolites: Updated Aggregate Human Health Risk Assessment to Address The New Section 3 Registrations For Use of Propiconazole on Tea, Dill, Mustard Greens, Radish, and Watercress; Use of Difenoconazole on Globe Artichoke, Ginseng and Greenhouse Grown Cucumbers and Conversion of the Established Foliar Uses/Tolerances for Stone Fruit and Tree Nut Crop Groups to Fruit, Stone, Group 12-12 and the Nut, Tree, Group 14-12.; and Use of Flutriafol on Hops” located under docket ID number EPA-HQ-OPP-2015-0685.

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

2. Prenatal and postnatal sensitivity. In the developmental toxicity study in rats, fetal effects observed in this study at a dose lower than that evoking maternal toxicity are considered to be quantitative evidence of increased susceptibility of fetuses to in utero exposure to propiconazole. Neither quantitative nor qualitative evidence of increased susceptibility was observed in utero or post-natally in either the rabbit developmental or 2-generation reproduction rat study. There is no evidence of neuropathology or abnormalities in the development of the fetal nervous system from the available toxicity studies conducted with propiconazole. In the rat acute neurotoxicity study, there was evidence of clinical toxicity at the high dose of 300 mg/kg, but no evidence of neuropathology from propiconazole administration.

Although there was quantitative evidence of increased susceptibility of the young following exposure to propiconazole in the developmental rat study, the Agency determined there is a low degree of concern for this finding and no residual uncertainties because the increased susceptibility was based on minimal toxicity at high doses of administration, clear NOAELs and LOAELs have been identified for all effects of concern, and a clear dose-response has been well defined.

3. Conclusion. EPA has determined that reliable data show the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1x. That decision is based on the following findings:

i. The toxicity database for propiconazole is complete.

ii. Other than the mild effects seen at 300 mg/kg in the acute neurotoxicity study, neurotoxicity and neurobehavioral effects were not seen in the propiconazole toxicity database. The liver, not the nervous system, is the primary target organ of propiconazole toxicity.

iii. Although an apparent increased quantitative susceptibility was observed in fetuses and offspring, for reasons noted in this Unit, residual uncertainties or concerns for prenatal and/or postnatal toxicity are minimal.

iv. There are no residual uncertainties identified in the exposure databases. The acute dietary food exposure assessments were performed based on 100 PCT and tolerance-level residues, while the chronic used a combination of tolerance-level residues and reliable data on average field trial residues and 100 PCT. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to propiconazole in drinking water. EPA used similarly conservative assumptions to assess post-application exposure of children as well as incidental oral exposure of toddlers. A turf transferable residue study is unavailable but being requested from the registrant for registration review of propiconazole. In all probability this study will reduce exposure estimates for both the incidental oral and post-application exposure to children. These assessments will not underestimate the exposure and risks posed by propiconazole.

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

1. Acute risk. Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food and water to propiconazole will occupy 85% of the aPAD for children 1-2 years old, the population group receiving the greatest exposure.

2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to propiconazole from food and water will utilize 24% of the cPAD for children 1-2 years old, the population group receiving the greatest exposure. Based on the explanation in Unit III.C.3., regarding residential use patterns, chronic residential exposure to residues of propiconazole is not expected.

3. Short-term risk. Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Propiconazole is currently registered for uses that could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to propiconazole.

Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in aggregate MOEs from post-application activities (the highest exposure scenario) of 200 for adults and 96 for children 1-2 years old. This assessment is considered conservative since the short-term endpoints are based on a conservative LOAEL that is 3x higher than the NOAEL. Therefore, the true NOAEL is likely higher and would result in MOEs greater than 100. Further, the assessment is based on a combination of tolerance-level residues and reliable data on average field-trial residues and 100 PCT, conservative assumptions in the ground and surface water modeling, and conservative assumptions to assess post-application exposure of children as well as incidental oral exposure of toddlers. Additionally, the assessment could be further refined by using PCT estimates and anticipated residues for all crops. Although dietary (food and water) is not the aggregate exposure driver, incorporating PCT would likely increase the aggregate MOE further above 100. For example, the Agency's latest PCT figures indicate that the highest average PCT reported for propiconazole residues on crops is 55%, which is much less than the 100 PCT the Agency used for all commodities in its assessment. Accordingly, even though this MOE for children 1-2 years old is slightly below the target MOE of 100, the difference is small and is more than offset by the conservative exposure assumptions and therefore not of concern.

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

Propiconazole is currently registered for uses that could result in intermediate-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with intermediate-term residential exposures to propiconazole.

Using the exposure assumptions described in this unit for intermediate-term exposures, EPA has concluded that the combined intermediate-term food, water, and residential exposures result in aggregate MOEs of 110 for children 1-2 years old. Because EPA's level of concern for propiconazole is a MOE of 100 or below, this MOE is not of concern.

5. Aggregate cancer risk for U.S. population. Based on the discussion in Unit III.A., EPA considers the chronic aggregate risk assessment to be protective of any aggregate cancer risk. As there is no chronic risk of concern, EPA does not expect any cancer risk to the U.S. population from aggregate exposure to propiconazole.

6. Determination of safety. Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to propiconazole residues.

Adequate enforcement methodology, a high performance liquid chromatography with ultraviolet detection method (HPLC/UV Method AG-671A) is available to enforce the tolerance expression.

The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address: [email protected].

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

The Codex has not established an MRL for propiconazole on tea.

Therefore, tolerances are established for residues of propiconazole, including its metabolites and degradates, in or on tea at 4.0 ppm. As there are currently no U.S. registrations for propiconazole for use on tea, EPA is adding a footnote to the regulation to clarify that fact.

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

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

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

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

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

Therefore, 40 CFR chapter I is amended as follows:

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

Potentially affected entities may include:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

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-2013-0730 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 February 22, 2016. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2013-0730, by one of the following methods:

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

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

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

In the Federal Register of Monday, December 30, 2013 (78 FR 79359) (FRL-9903-69) and Wednesday, November 4, 2015 (80 FR 68289) (FRL-9936-13), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing and subsequent filing of an amendment to pesticide petition (PP 3E8203) by IR-4, 500 College Road East, Suite 201 W, Princeton, NJ 08540. The petition requested that 40 CFR 180 be amended by establishing tolerances for the combined residues of the insecticide spinetoram, expressed as a combination of XDE-175-J: 1-;H-as-indaceno[3,2d]oxacyclododecin-7,15-dione, 2-[(6-deoxy-3-O-ethyl-2,4-di-O-methyl-a-Lmannopyranosyl)oxy]-13-[[(2R,5S,6R)-5-(dimethylamino)tetrahydro-6-methyl-2Hpyran-2-yl]oxy]-9-ethyl-2,3,3a,4,5,5a,5b,6,9,10,11,12,13,14,16a,16b-hexadecahydro 14-methyl-(2R,3aR,5aR,5bS,9S,13S,14R,16aS,16bR); XDE-175-L: 1H-as-indaceno[3,2d]oxacyclododecin-7,15-dione, 2-[(6-deoxy-3-O-ethyl-2,4-di-O-methyl-a-Lmannopyranosyl)oxy]-13-[[(2R,5S,6R)-5-(dimethylamino)tetrahydro-6-methyl-2Hpyran-2-yl]oxy]-9-ethyl-2,3,3a,5a,5b,6,9,10,11,12,13,14,16a,16b-tetradecahydro-4,14-dimethyl-(2S,3aR,5aS,-5bS,9S,13S,14R,16aS,16bS); ND-J: (2R,3aR,5aR,5bS,9S,13S,14R,16aS,16bR)-9-ethyl-14-methyl-13-[[(2S,5S,6R)-6-methyl-5-(methylamino)tetrahydro-2H-pyran-2-yl]oxy]-7,15-dioxo-2,3,3a,4,5,5a,5b,6,7,9,10,11,12,13,14,15,16a,16b-octadecahydro-1H-as-indaceno[3,2-d]oxacyclododecin-2-yl 6-deoxy-3-O-ethyl-2,4-di-O-methyl-alpha-L-manno pyranoside; and NF-J: (2R,3S,6S)-6-([(2R,3aR,5aR,5bS,9S,13S,14R,16aS,16bR)-2-[(6-deoxy-3-Oethyl-2,4-di-O-methyl-alpha-L-mannopyranosyl)oxy]-9-ethyl-14-methyl-7,15-dioxo-2,3,3a,4,5,5a,5b,6,7,9,10,11,12,13,14,15,16a,16b-octadecahydro-1H-as-indaceno[3,2d]oxacyclododecin-13-yl]oxy)-2-methyltetrahydro-2H-pyran-3-yl(methyl)formamide in or on the following raw agricultural commodities: Berry, low growing, subgroup 13-07G, except blueberry, lowbush, and cranberry at 1.0 parts per million (ppm); bushberry subgroup 13-07B, except lingonberry at 0.25 ppm; caneberry subgroup 13-07A at 0.7 ppm; coffee, green bean at 0.2 ppm; coffee, instant at 0.4 ppm; coffee, roasted bean at 0.4 ppm; cottonseed subgroup 20C at 0.04 ppm; fruit, citrus, group 10-10 at 0.3 ppm; fruit, pome group 11-10 at 0.2 ppm; fruit, small, vine climbing, except fuzzy kiwifruit, subgroup 13-07F at 0.5 ppm; fruit, stone, group 12-12 at 0.2 ppm; nuts, tree, group 14-12 at 0.1 ppm; onion, bulb, subgroup 3-07A at 0.1 ppm; onion, green, subgroup 3-07B at 2.0 ppm; quinoa, grain at 0.04 ppm; and vegetable, fruiting, group 8-10 at 0.4 ppm. In addition, the petitioner proposes based upon establishment of the new tolerances above, to remove the following established spinetoram tolerances that are superseded by this action: Bushberry subgroup 13B at 0.25 ppm; caneberry subgroup 13A at 0.70 ppm; cotton, undelinted seed at 0.04 ppm; fruit, citrus, group 10 at 0.30 ppm; fruit, pome, group 11 at 0.20 ppm; fruit, stone, group 12 at 0.20 ppm; grape at 0.50 ppm; juneberry at 0.25 ppm; lingonberry at 0.25 ppm; nut tree, group 14 at 0.10 ppm; okra at 0.40 ppm; onion, green at 2.0 ppm; pistachio at 0.10 ppm; salal at 0.25 ppm; strawberry at 1.0 ppm; vegetable, bulb, group 3, except green onion at 0.10 ppm; and vegetable, fruiting group 8 at 0.4 ppm. That document referenced a summary of the petition prepared by Dow AgroSciences, the registrant, which is available in the docket, http://www.regulations.gov. A single comment was received on the notice of filing, EPA's response to the comment is discussed in Unit IV.C.

Based upon review of the data supporting the petition, EPA has made certain modifications to petitioned-for actions. The reasons for these changes are explained in Unit IV.C.

Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”A24DE0.

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

Spinetoram and spinosad are considered by EPA to be toxicologically identical for human health risk assessment based on their very similar chemical structures and similarity of the toxicological databases for currently available studies. The primary toxic effect observed from exposure to spinosad or spinetoram was histopathological changes in multiple organs (specific target organs were not identified). Vacuolization of cells and/or macrophages was the most common histopathological finding noted across both toxicological databases with the dog being the most sensitive species. In addition to the numerous organs observed with histopathological changes, anemia was noted in several studies.

There was no evidence of increased quantitative or qualitative susceptibility from spinosad or spinetoram exposure. In developmental studies, no maternal or developmental effects were seen in rats or rabbits. In the rat reproduction toxicity studies, offspring toxicity was seen in the presence of parental toxicity at approximately the same dose for both chemicals (75-100 milligram/kilogram/day (mg/kg/day)). Parental toxicity was evidenced by increased organ weights, mortality, and histopathological findings in several organs. Offspring effects included decreased litter size, survival, and body weights with spinosad while an increased incidence of late resorptions and post-implantation loss was seen with spinetoram. Dystocia and/or other parturition abnormalities were observed with both chemicals.

Spinosad and spinetoram are classified as having low acute toxicity via the oral, dermal, and inhalation routes of exposure. Neither chemical is an eye or dermal irritant. Spinetoram was found to be a dermal sensitizer. No hazard was identified for dermal exposure; therefore a quantitative dermal assessment is not needed. In acute and subchronic neurotoxicity studies, there was no evidence of neurotoxicity from exposure to spinosad or spinetoram. In an immunotoxicity study with spinosad, systemic effects (decreased body weights, increased liver weights, and abnormal hematology results) were seen at the highest dose tested (141 mg/kg/day); however, there was no evidence of immunotoxicity.

Spinosad and spinetoram are classified as “not likely to be carcinogenic to humans” based on lack of evidence of carcinogenicity in mice and rats and negative findings in mutagenicity assays.

Specific information on the studies received and the nature of the adverse effects caused by spinetoram and spinosad as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov in documents including: 1) “Spinosad and Spinetoram—Human Health Risk Assessment to Support the Section 3 Registration Request for Application to Coffee and for Updates to Several Crop Group/Subgroup Commodity Definitions,” dated March 10, 2015 at pp. 31, and 2) “Spinosad/Spinetoram. Addendum to Human Health aggregate Risk assessment D415812 (T. Bloem et al., 10-Mar-2015) to Support a New Use on Quinoa”, dated November 2015 in docket ID number EPA-HQ-OPP-2013-0730.

Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which the NOAEL and the LOEAL are identified. Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/assessing-human-health-risk-pesticides.

Spinosad and spinetoram should be considered toxicologically identical in the same manner that metabolites are generally considered toxicologically identical to the parent. Although, as stated above, the doses and endpoints for spinosad and spinetoram are similar, they are not identical due to variations in dosing levels used in the spinetoram and spinosad toxicological studies. EPA compared the spinosad and spinetoram doses and endpoints for each exposure scenario and selected the lower of the two doses for use in human risk assessment.

A summary of the toxicological endpoints for spinosad/spinetoram used for human risk assessment is shown in Table 1 of this unit.

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to spinetoram and spinosad, EPA considered exposure under the petitioned-for tolerances as well as all existing spinetoram tolerances in 40 CFR 180.635 as well as existing spinosad tolerances. EPA assessed dietary exposures from spinetoram and spinosad in food as follows:

i. Acute exposure. Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure.

No such effects were identified in the toxicological studies for spinetoram or spinosad; therefore, a quantitative acute dietary exposure assessment is unnecessary.

ii. Chronic exposure. Spinosad is registered for application to all of the same crops as spinetoram, with similar pre-harvest and retreatment intervals, and application rates greater than or equal to spinetoram. Further, both products control the same pest species. For this reason, EPA has concluded it would overstate exposure to assume that residues of both spinosad and spinetoram would appear on the same food. Rather, EPA aggregated exposure by assuming that all commodities contain spinosad residues (because side- by-side spinetoram and spinosad residue data indicated that spinetoram residues were less than or equal to spinosad residues).

In conducting the chronic dietary exposure assessment for spinetoram, EPA used the Dietary Exposure Evaluation Model—Food Consumption Intake Database (DEEMFCID, ver. 3.16) which incorporates food consumption data from the United States Department of Agriculture (USDA) National Health and Nutrition Examination Survey, What We Eat in America (NHANES/WWEIA; 2003-2008). The chronic analysis assumed 100 percent crop treated (PCT), average field-trial residues or tolerance-level residues for crop commodities, average residues from the livestock feeding studies, experimental processing factors when available, and modeled drinking water estimates.

iii. Cancer. Based on the data summarized in Unit III.A., EPA has concluded that spinetoram does not pose a cancer risk to humans. Therefore, a dietary exposure assessment for the purpose of assessing cancer risk is unnecessary.

iv. Anticipated residue and 100 percent crop treated (PCT) information were used. Section 408(b)(2)(E) of FFDCA authorizes EPA to use available data and information on the anticipated residue levels of pesticide residues in food and the actual levels of pesticide residues that have been measured in food. If EPA relies on such information, EPA must require pursuant to FFDCA section 408(f)(1) that data be provided 5 years after the tolerance is established, modified, or left in effect, demonstrating that the levels in food are not above the levels anticipated. For the present action, EPA will issue such data call-ins as are required by FFDCA section 408(b)(2)(E) and authorized under FFDCA section 408(f)(1). Data will be required to be submitted no later than 5 years from the date of issuance of these tolerances.

2. Dietary exposure from drinking water. The Agency used screening level water exposure models in the dietary exposure analysis and risk assessment for spinetoram and spinosad in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of spinetoram and spinosad. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/about-water-exposure-models-used-pesticide.

Based on the Surface Water Concentration Calculator (SWCC) and Screening Concentration in Ground Water (SCIGROW) models, the estimated drinking water concentrations (EDWCs) of spinetoram for acute exposures are estimated to be 8.6 parts per billion (ppb) for surface water and 0.072 ppb for ground water. For chronic exposures for non-cancer assessments are estimated to be 5.9 ppb for surface water and 0.072 ppb for ground water. EDWCs of spinosad for acute exposures are estimated to be 25.0 ppb for surface water and 1.1 ppb for ground water. For chronic exposures for noncancer assessments are estimated to be 21.7 ppb for surface water and 1.1 ppb for ground water.

Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For chronic dietary risk assessment, the water concentration of value 21.7 ppb was used to assess the contribution to drinking water.

3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets).

Spinetoram and spinosad are currently registered for uses that could result in residential exposures including lawns, gardens, turfgrass, ornamentals, fire ant mounds, and spot-on pet applications. There is potential for residential handler and postapplication exposures to both spinosad and spinetoram. Since spinosad and spinetoram control the same pests, EPA concludes that these products will not be used for the same uses in combination with each other and thus combining spinosad and spinetoram residential exposures would overstate exposure. EPA assessed residential exposure for both spinosad and spinetoram using the most conservative residential exposure scenarios for either chemical.

EPA assessed residential exposure using the following assumptions: Residential handler (short-term inhalation exposures) and post-application (short-term incidental oral) exposures are expected as a result of the following registered uses: (1) Application of spinosad to gardens, turfgrass, ornamentals and fire ant mounds; (2) application of spinetoram to lawns, gardens, and ornamentals; and (3) spot-on application of spinetoram to cats and kittens. The Agency determined the “worst-case” scenarios for handler and post-application exposures as: (1) Adult residential handler inhalation exposure from mixing/loading/applying liquid formulations to turf via backpack sprayer, and (2) child (1-<2 years) residential post-application incidental oral (hand-to-mouth) exposure from liquid formulation on turf/home gardens/ornamentals. These worst-case exposure estimates were used in the aggregate assessment of residential exposure to spinosad and spinetoram.

Aggregating exposure resulting from the turf and pet uses was not conducted as the products control different pests and, therefore, application on the same day is unlikely. Use survey data indicate that concurrent use of separate pesticide products that contain the same active ingredient to treat the same or different pests does not typically occur. Furthermore, a number of issues are considered when combining residential exposure scenarios, including whether aggregating additional uses is appropriate in light of the already conservative assumptions inherent in the assessment. When assessing individual short-term residential postapplication exposure scenarios, EPA assumes exposure occurs to zero-day residues (i.e., day of application residues) day after day. EPA also assumes that an individual performs the same postapplication activities, intended to represent high end exposures as described in the Residential SOPS, day after day for the same amount of time every day (i.e., no day to day variation), although doing intense contact activities on the day of application subsequent to application for multiple chemicals would not be anticipated. Once calculated, these exposure estimates are then compared to points of departure that are typically based on weeks of dosing in test animals. For spinosad/spinetoram, the short-term risk assessment has the additional conservatism of basing the level of concern for short-term exposure (30-days) on a toxicity study involving continuous exposure over 90 days.

Current EPA policy requires assessment for residential post-application exposures of short- (1 to 30 days), intermediate- (1 to 6 months), and long-term (greater than 6 months) exposures from spot-on products due to the preventative nature of these products and the potential for extended usage in more temperate parts of the country. However, for spinetoram, there is no progression of toxicity with time; therefore, the short-term assessment is protective of intermediate- and long-term exposure.

Available turf transferable residue (TTR) data on spinosad in support of turf uses and spinetoram data on dislodgeable residues from petting after topical administration to cats were incorporated into the exposure assessment. Spinosad and spinetoram dislodgeable-foliar residue (DFR) studies are unnecessary at this time as there is no hazard via the dermal route of exposure.

Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/standard-operating-procedures-residential-pesticide.

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 spinosad or spinetoram to share a common mechanism of toxicity with any other substances, and neither spinosad nor spinetoram appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that spinosad and spinetoram do not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/cumulative-assessment-risk-pesticides.

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

2. Prenatal and postnatal sensitivity. There was no evidence of increased quantitative or qualitative susceptibility of rat and rabbit fetuses to in-utero exposure to spinetoram or spinosad. In developmental studies, no maternal or developmental effects were seen in rats or rabbits. In the rat reproduction toxicity studies, offspring toxicity was seen in association with parental toxicity at approximately the same dose for both spinetoram and spinosad. Therefore, there is no evidence of increased susceptibility and there are no concerns or residual uncertainties for pre-natal and/or post-natal toxicity.

3. Conclusion. EPA has determined that reliable data show the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1X. That decision is based on the following findings:

i. The toxicity database for spinetoram and spinosad is complete. There is no evidence of neurotoxicity, developmental/reproductive toxicity, immunotoxicity, mutagenicity, or carcinogenicity from spinetoram or spinosad exposure. Therefore, no additional database uncertainty factor (UF) is needed.

ii. There is no indication of spinetoram or spinosad neurotoxicity from available acute and subchronic neurotoxicity studies in rats and there is no need for a developmental neurotoxicity study.

iii. There is no evidence that spinetoram or spinosad results in increased susceptibility in in utero rats or rabbits in the prenatal developmental studies or in young rats in the 2-generation reproduction study.

iv. There are no residual uncertainties identified in the spinetoram and spinosad exposure databases. The dietary exposure assessment is conservative as it assumes 100 PCT and residue estimates are based on field trial data. Moreover, EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to spinetoram and spinosad in drinking water. EPA used similarly conservative assumptions to assess post-application exposure of children as well as incidental oral exposure of toddlers. These assessments will not underestimate the exposure and risks posed by spinetoram and spinosad.

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

1. Acute risk. An acute aggregate risk assessment takes into account acute exposure estimates from dietary consumption of food and drinking water. No adverse effect resulting from a single oral exposure was identified and no acute dietary endpoint was selected. Therefore, spinetoram and spinosad are not expected to pose an acute risk.

2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to spinetoram and spinosad from food and water will utilize 64% of the cPAD for children 1-2 years old, the population group receiving the greatest exposure. Based on the explanation in Unit III.C.3., regarding residential use patterns, chronic residential exposure to residues of spinetoram and spinosad is not expected.

3. Short-term risk. Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Spinetoram and spinosad is currently registered for uses that could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to spinetoram and spinosad.

Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in aggregate MOEs of 220 for children and 1,000 for adults. Because EPA's level of concern for spinetoram and spinosad is a MOE of < 100, these MOEs are not of concern.

EPA has concluded that the combined intermediate-term and long-term food, water, and residential exposures result in aggregate MOEs that will not fall below the short-term aggregate MOEs since there is no progression of spinetoram toxicity with time. Because EPA's level of concern for spinetoram and spinosad is a MOE of < 100, these MOEs are not of concern.

4. Aggregate cancer risk for U.S. population. Based on the lack of evidence of carcinogenicity in two adequate rodent carcinogenicity studies with spinosad, spinetoram is not expected to pose a cancer risk to humans.

5. Determination of safety. Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to spinetoram residues.

Method GRM 05.04 is a high-performance liquid chromatography (HPLC)/mass spectrometry (MS)/MS method which has been determined to be adequate for enforcement of existing spinetoram plant tolerances. The method has been validated on a wide-variety of crops and EPA concluded that it is sufficient to enforce the tolerances established by this action.

The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address: [email protected].

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

Codex MRLs for spinetoram are currently established in or on several of the relevant crops or crop groups or subgroups affected by this action. EPA harmonizes with existing Codex MRLs whenever feasible. The recommended fruit, stone, group 12-12 tolerance and the Codex MRL are harmonized. But harmonization with the currently established Codex MRLs is inappropriate for the following crop groups and subgroups as harmonization may result in exceedances of the tolerances when the pesticide is applied using the labeled instructions: Bushberry, subgroup 13-07B; fruit, citrus, group 10-10; fruit, pome, group 11-10; fruit, small, vine climbing, except fuzzy kiwifruit, subgroup 13-07F; nut, tree, group 14-12; onion, green, subgroup 3-07B; and vegetable, fruiting, group 8-10. Also, EPA is not harmonizing the U.S. tolerance for onion, bulb, subgroup 3-07A (0.10 ppm) with the Codex MRL (0.01 ppm). The current U.S. spinetoram tolerance of 0.10 is based on components XDE-175-J, XDE-175-L, ND-J, and NF-J, with the limit of quantitation (LOQ) for each of 0.01 ppm. EPA concludes that a spinetoram tolerance <0.04 ppm is not appropriate and harmonization with a Codex MRL at 0.01 ppm is not practical.

One comments was received from the Center for Biological Diversity and concerned endangered species; specifically stating that EPA cannot approve these new uses prior to completion of consultations with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (“the Services”). This comment is not relevant to the Agency's evaluation of safety of the spinetoram tolerances; section 408 of the FFDCA focuses on the potential harms to human health and does not permit consideration of effects on the environment.

EPA made corrections to several commodity definitions to conform to current Agency practices and revised certain proposed tolerance levels based on the available field trial data, the Organization for Economic Co-operation and Development (OECD) tolerance calculation procedures and/or for purposes of harmonization, including the following: (1) Proposed tolerance of 0.2 ppm in/on coffee, green bean was established at 0.04 ppm; (2) proposed tolerance in/on fruit, stone, group 12-12 at 0.20 ppm, established at 0.30 ppm; (3) proposed tolerance in/on caneberry, subgroup 13-07A at 0.7 ppm, established at 0.80 ppm; (4) proposed tolerance in/on bushberry, subgroup 13-07B at 0.25 ppm, established at 0.50 ppm; (5) proposed tolerance in/on berry, low growing, subgroup 13-07G, except cranberry at 1.0 ppm, established at 0.90 ppm; and (6) a proposed tolerance of 0.04 ppm in/on both coffee, instant and coffee, roasted bean was determined to be unnecessary because the tolerance on the raw agricultural commodity covers residues on the processed commodities.

In addition, the Agency is updating the tolerance expression for spinetoram as follows to reflect current EPA policies: “Tolerances are established for residues of the insecticide spinetoram, including its metabolites and degradates, in or on the commodities in the table below. Compliance with the tolerance levels specified below is to be determined by measuring only the sum of XDE-175-J: 1-H-as-indaceno[3,2d]oxacyclododecin-7,15-dione, 2-[(6-deoxy-3-O-ethyl-2,4-di-O-methyl-α-Lmannopyranosyl)oxy]-13-[[(2R,5S,6R)-5-(dimethylamino)tetrahydro-6-methyl-2H-pyran2-yl]oxy]-9-ethyl-2,3,3a,4,5,5a,5b,6,9,10,11,12,13,14,16a,16b-hexadecahydro-14methyl-,(2R,3aR,5aR,5bS,9S,13S,14R,16aS,16bR); XDE-175-L: 1H-as-indaceno[3,2d]oxacyclododecin-7,15-dione, 2-[(6-deoxy-3-O-ethyl-2,4-di-O-methyl-α-Lmannopyranosyl)oxy]-13-[[(2R,5S,6R)-5-S,6R)-5-(dimethylamino)tetrahydro-6-methyl-2H-pyran2-yl]oxy]-9-ethyl-2,3,3a,5a,5b,6,9,10,11,12,13,14,16a,16b-tetradecahydro-4,14-dimethyl, (2S,3aR,5aS,5bS,9S,13S,14R,16aS,16bS); ND-J: (2R,3aR,5aR,5bS,9S,13S,14R,16aS,16bR)-9-ethyl-14-methyl-13-[[(2S,5S,6R)-6-methyl-5-(methylamino)tetrahydro-2H-pyran-2-yl]oxy]-7,15-dioxo-2,3,3a,4,5,5a,5b,6,7,9,10,11,12,13,14,15,16a,16b-octadecahydro-1H-as-indaceno[3,2-d]oxacyclododecin-2-yl-6-deoxy-3-O-ethyl-2,4-di-O-methyl-α-L-mannopyranoside; and NF-J: (2R,3S,6S)-6([(2R,3aR,5aR,5bS,9S,13S,14R,16aS,16bR)-2-[(6-deoxy-3-O-ethyl-2,4-di-O-methyl-α-Lmannopyranosyl)oxy]-9-ethyl-14-methyl-7,15-dioxo-2,3,3a,4,5,5a,5b,6,7,9,10,11,12,13,14,15,16a,16b-octadecahydro-1H-as-indaceno[3,2-d]oxacyclododecin-13-yl]oxy)-2methyltetrahydro-2H-pyran-3-yl(methyl)formamide, calculated as the stoichiometric equivalent of spinetoram.

Therefore, tolerances are established for residues of the insecticide spinetoram, including its metabolites and degradates, in or on the commodities listed below. Compliance with the tolerance levels specified below is to be determined by measuring only the sum of XDE-175-J: 1-H-as-indaceno[3,2-d]oxacyclododecin-7,15-dione,2-[(6deoxy-3-O-ethyl-2,4-di-O-methyl-α-L-mannopyranosyl)oxy]-13-[[(2R,5S,6R)-5(dimethylamino)tetrahydro-6-methyl-2H-pyran-2yl]oxy]-9-ethyl-2,3,3a,4,5,5a,5b,6,9,10,11,12,13,14,16a,16b-hexadecahydro-14-methyl-,(2R,3aR,5aR,5bS,9S,13S,14R, 16aS,16bR); XDE-175-L: 1H-as-indaceno[3,2-d]oxacyclododecin-7,15-dione, 2-[(6deoxy-3-O-ethyl-2,4-di-O-methyl-α-L-mannopyranosyl)oxy]-13-[[(2R,5S,6R)-5(dimethylamino)tetrahydro-6-methyl-2H-pyran-2-yl]oxy]-9-ethyl-2,3,3a,5a,5b,6,9,10,11,12,13,14,16a,16b-tetradecahydro-4,14-dimethyl-,(2S,3aR,5aS,5bS,9S,13S,14R,16aS,16bS);ND-J: (2R,3aR,5aR,5bS,9S,13S,14R, R,16aS,16bR)-9-ethyl-14-methyl-13[[(2S,5S,6R)-6-methyl-5-(methylamino)tetrahydro-2H-pyran-2-yl]oxy]-7,15-dioxo2,3,3a,4,5,5a,5b,6,7,9,10,11,12,13,14,15,16a,16b-octadecahydro-1H-as-indaceno[3,2d]oxacyclododecin-2-yl-6-deoxy-3-O-ethyl-2,4-di-O-methyl-α-L-mannopyranoside; and NF-J: (2R,3S,6S)-6-([(2R,3aR,5aR,5bS,9S,13S,14R,16aS,16bR)-2-[(6-deoxy-3-O-ethyl-2,4-di-O-methyl-α-L-mannopyranosyl)oxy]-9-ethyl-14-methyl-7,15-dioxo-2,3,3a,4,5,5a,5b,6,7,9,10,11,12,13,14,15,16a,16b-octadecahydro-1H-as-indaceno[3,2d] oxacyclododecin-13-yl]oxy)-2-methyltetrahydro-2 H-pyran-3-yl(methyl)formamide, calculated as the stoichiometric equivalent of spinetoram in or on berry, low growing, subgroup 13-07G, except cranberry at 0.90 ppm; bushberry, subgroup 13-07B at 0.50 ppm; caneberry subgroup 13-07A at 0.80 ppm; coffee, green bean at 0.04 ppm; cottonseed subgroup 20C at 0.04 ppm; fruit, citrus, group 10-10 at 0.30 ppm; fruit, pome, group 11-10 at 0.20 ppm; fruit, small, vine climbing, subgroup 13-07F, except fuzzy kiwifruit at 0.50 ppm; fruit, stone 12-12 at 0.30 ppm; nut, tree, group 14-12 at 0.10 ppm; onion, bulb, subgroup 3-07A at 0.10 ppm; onion, green, subgroup 3-07B at 2.0 ppm; quinoa, grain at 0.04 ppm; and vegetable, fruiting, group 8-10 at 0.40 ppm. In addition, EPA is removing the following existing spinetoram tolerances that are superseded by this action including: Bushberry subgroup 13B at 0.25 ppm; caneberry subgroup 13A at 0.70 ppm; cotton, undelinted seed at 0.02 ppm; fruit, citrus, group 10 at 0.30 ppm; fruit, pome, group 11 at 0.20 ppm; fruit, stone, group 12 at 0.20 ppm; grape at 0.50 ppm; juneberry at 0.25 ppm; lingonberry at 0.25 ppm; nut tree, group 14 at 0.10 ppm; okra at 0.40 ppm; onion, green at 2.0 ppm; pistachio at 0.10 ppm; salal at 0.25 ppm; strawberry at 1.0 ppm; vegetable, bulb, group 3, except green onion at 0.10 ppm; and vegetable, fruiting group 8 at 0.4 ppm.

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

Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerances 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:

This document announces that, on December 2, 2015, OMB approved, for a period of three years, the new information collection requirements contained in the Commission's Second E-rate Modernization Order, FCC 14-189, published at 80 FR 5961, February 4, 2015. The OMB Control Number is 3060-0806. The Commission publishes this document as an announcement of the effective date of 47 CFR 54.504(a)(1)(iii).

If you have any comments on the burden estimates listed below, or how the Commission can improve the collections and reduce any burdens caused thereby, please contact Nicole Ongele, Federal Communications Commission, Room 1-A620, 445 12th Street SW., Washington, DC 20554. Please include the OMB Control Number, 3060-0806, in your correspondence. The Commission will also accept your comments via the Internet if you send them to [email protected].

To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to [email protected] or call the Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the FCC is notifying the public that it received OMB approval on December 2, 2015, for the information collection requirements contained in the Commission's rule at 47 CFR 54.504(a)(1)(iii).

Under 5 CFR part 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number.

No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number. The OMB Control Number is 3060-0806.

The foregoing document is required by the Paperwork Reduction Act of 1995, Pub. L. 104-13, October 1, 1995, and 44 U.S.C. 3507.

The total annual reporting burdens and costs for the respondents are as follows:

OMB Control Number: 3060-0806.

OMB Approval Date: December 2, 2015.

OMB Expiration Date: December 31, 2018.

Title: Universal Service—Schools and Libraries Universal Service Program, FCC Forms 470 and 471.

Form Numbers: FCC Forms 470 and 471.

Respondents: State, local or tribal government public institutions, and other not-for-profit institutions.

Number of Respondents and Responses: 52,700 respondents, 82,090 responses.

Estimated Time per Response: 3.5 hours for FCC Form 470 (3 hours for response; 0.5 hours for recordkeeping; 4.5 hours for FCC Form 471 (4 hours for response; 0.5 hours for recordkeeping).

Frequency of Response: On occasion, annual reporting, and recordkeeping requirements.

Obligation to Respond: Required to obtain or retain benefits. Statutory authority for this information collection is contained in 47 U.S.C. 151-154, 201-205, 218-220, 254, 303(r), 403, and 405.

Total Annual Burden: 334,405 hours.

Total Annual Cost: No cost.

Privacy Act Impact Assessment: No impact(s).

Nature and Extent of Confidentiality: There is no assurance of confidentiality provided to respondents concerning this information collection. However, respondents may request materials or information submitted to the Commission or to the Administrator be withheld from public inspection under 47 CFR 0.459 of the Commission's rules.

Needs and Uses: The Commission seeks to revise OMB 3060-0806 to conform this information collection to the program changes set forth in the Second Report and Order and Order on Reconsideration (Second E-Rate Modernization Order) (WC Docket No. 13-184, WC Docket No. 10-90, FCC 14-189; 80 FR 5961, February 4, 2015). Collection of the information on FCC Forms 470 and 471 is necessary so that the Commission and the Universal Service Administrative Company (USAC) have sufficient information to determine if entities are eligible for funding pursuant to the schools and libraries support mechanism (the E-rate program), to determine if entities are complying with the Commission's rules, and to prevent waste, fraud, and abuse. In addition, the information is necessary for the Commission to evaluate the extent to which the E-rate program is meeting the statutory objectives specified in section 254(h) of the 1996 Act, and the Commission's own performance goals established in the Report and Order and Further Notice of Proposed Rulemaking (E-rate Modernization Order), 79 FR 49160, August 19, 2014 and Second E-rate Modernization Order, 80 FR 5961, February 4, 2015. This information collection is being revised to modify FCC Form 471 pursuant to program and rule changes in the Second E-rate Modernization Order and to accommodate USAC's new online portal as well as the requirement that all FCC Forms 471 be electronically filed.

On March 19, 2015, the NTSB published an NPRM inviting public comments concerning the NTSB's procedural rules for investigative hearings, Board meetings, agency reports, and petitions for reconsideration, codified at 49 CFR part 845. 80 FR 14339. In addition to various technical changes, the NTSB proposed reorganizing the part into subparts and including descriptions of Board products.

The NTSB issued its NPRM in accordance with its June 25, 2012 notice indicating the agency's intent to undertake a review of all NTSB regulations to ensure they are updated. 77 FR 37865. Executive Order 13579, “Regulation and Independent Regulatory Agencies” (76 FR 41587, July 14, 2011), prompted the NTSB to conduct its review of all NTSB regulations. The purpose of Executive Order 13579 is to ensure all agencies adhere to the key principles found in Executive Order 13563, “Improving Regulation and Regulatory Review” (76 FR 3821, January 21, 2011), which include promoting public participation in rulemaking, improving integration and innovation, promoting flexibility and freedom of choice, and ensuring scientific integrity during the rulemaking process in order to create a regulatory system that protects public health, welfare, safety, and the environment while promoting economic growth, innovation, competitiveness, and job creation. The NTSB explained in its June 25, 2012, notice that it is committed to ensuring its regulations remain updated and comply with these principles. The NTSB published an additional notice in the Federal Register on January 8, 2013, describing the NTSB's plan for updating all regulations. 78 FR 1193. In accordance with these two notices published in the Federal Register, the NTSB reviewed all sections within 49 CFR part 845, in the interest of ensuring they accomplish the objectives stated in Executive Order 13563. The NTSB published the NPRM pursuant to the agency's plan of retrospective review.

The NTSB received five comments in response to the March 19, 2015 NPRM. Two of the comments addressed proposed changes to 49 CFR part 845, as well as the changes and additions we proposed in our August 12, 2014 NPRM to reorganize and change 49 CFR part 831 (“Investigation Procedures”). 79 FR 47064. In this regard, Airlines for America (A4A) submitted a comment reiterating its concerns about our proposed use of the term “event” in our NPRM for part 831, and recommended we expand our protections of voluntarily submitted information in § 831.6. In addition, The Boeing Company (Boeing) included a copy of its comment in response to our part 831 NPRM. Boeing also reiterated its recommendation that we adopt a practice of sharing draft Board reports with parties.

The Air Line Pilots Association, International (ALPA) urged us to change the terms “probable cause” to “probable cause(s)” throughout the part. Similarly, the United States Coast Guard (USCG) submitted a comment requesting we remove the term “event” from part 845; in particular, the USCG mentioned § 845.2 (“Investigative hearings”) in this suggestion. In addition, ALPA encouraged the NTSB to continue to use the terms “accident” and “incident” for aviation-specific investigations rather than the term “event.”

We understand commenters' concerns regarding use of the term “event” throughout this part. Several commenters expressed similar concerns in response to our part 831 NPRM. In our forthcoming final rule to finalize the changes to part 831, we will explain our responses to such comments concerning the term “event.” For this final rule to finalize changes to part 845, we simply note we understand the concerns with the term, and we have removed it from the regulatory text appearing in this final rule.

The commenters also submitted recommendations for specific sections, to which we respond below.

Regarding § 845.9, in which the NTSB proposed retaining most of the text of § 845.23 describing prehearing conferences, ALPA recommends retaining the existing language in § 845.23(b) and adding the following text to § 845.9(b): “copies of all exhibits proposed for admission by the board of inquiry and the parties shall be furnished to the board and to all the parties, insofar as available at the time.” The text the NTSB proposed would require all parties be advised of the witnesses to be called, the areas in which the witnesses would be examined, and the evidence to be offered. The proposed text would also require parties to the hearing to submit, at the prehearing conference, copies of any additional documentary exhibits they desire to offer for admission at the hearing. The proposed text did not include the phrase, “insofar as available at the time.”

The NTSB believes it is unnecessary to include the phrase, “insofar as available at the time [of the prehearing conference],” as ALPA suggests. As proposed, the sentence requiring submission of copies of exhibits expected to be offered at hearings is sufficient to connote the exhibits would be available when offered. As ALPA noted, this requirement already exists in the current version of § 845.23(b). In addition, paragraph (c) of § 845.9 addresses the issue of a party to a hearing holding information the party knows it intends to produce at the hearing.

Boeing recommends we adopt the International Civil Aviation Organization (ICAO) protocol of sharing draft reports with all parties to an NTSB investigation. Boeing contends not sharing draft reports can be detrimental to the quality of Board reports. In its submission, Boeing also attached a copy of its comment to our NPRM for part 831 regarding this issue.1

A4A generally supports all the changes we proposed in part 845. A4A does not object to our proposed text in § 845.13 (“Proposed findings”), but asks us to remain cognizant that partial releases of information could cause “unproductive speculation.” In the comment A4A submitted in response to our NPRM proposing changes to part 831, A4A stated it strongly supports the practice of sharing draft reports for parties' review prior to the Board's review of the draft, in accordance with the ICAO practice.

The NTSB understands parties' interest in reviewing draft reports prior to the Board's review of them. In this regard, the agency has considered carefully the feedback we received in response to the part 831 NPRM. The agency appreciates the candor and recommendations commenters offered concerning this issue, and we are mindful that our practice differs from that of ICAO. At present, the agency believes changing its practice of the review process for draft reports is best left to internal agency procedures and need not be the subject of a rulemaking exercise. As a result, the NTSB will not change the proposed text of § 845.13 to address the sharing of draft reports.

The Association of American Railroads (AAR) stated it believes the NTSB is attempting impermissibly to expand our authority. AAR opines our description of our practice for holding forums, symposiums, and conferences in § 845.21 is improper because these proceedings are “not within the scope of the NTSB's mandate or authority.” In addition, AAR challenges our process for choosing which investigations are worthy of Board meetings. In the NPRM, the agency proposed § 845.20 to state the Board may hold a meeting whenever “the Board determines holding a meeting is in the public interest.” AAR believes “the `public interest' standard is not in the current regulation at 49 CFR 804.3, and it essentially presumes an unrestricted ability to hold public meetings about any topic.”

ALPA supports our proposed language in § 845.21(b) stating symposiums, forums, and conferences are not intended to obtain evidence or establish facts for a particular NTSB investigation.

Regarding § 845.21, the USCG cautions, to the extent a proceeding may have a relationship to ongoing investigation(s) and the proceeding occurs prior to the completion of an investigation, holding the proceeding could result in premature or incomplete findings and recommendations. The USCG also states our proposed language “does not consider other investigations that are conducted concurrently, such as internal agency investigations, and the facts and conclusions that may result from those efforts.” The USCG recommends we remove the term “ongoing” from the regulatory text.

We disagree with AAR's contention that we lack the authority to hold forums, symposiums, and conferences. Under 49 U.S.C. 1116, we have held such proceedings for purposes of educating the agency and the public on transportation trends or aspects of transportation that could benefit from safety improvements. Section 1116(b) provides broad authority to the NTSB to accomplish this purpose.

Given this statutory language, it is axiomatic that the NTSB's responsibility is not limited to the requirements of 49 U.S.C. 1131 and 1132 regarding investigations, or section 1133 regarding the review of aviation and mariner certificate and license appeals. The NTSB is also required to conduct special studies and investigations concerning transportation safety in general. The NTSB is best situated to exercise this mandate, given the expertise of its staff and the experiences the agency gains in investigations of accidents and incidents that safety improvements could prevent.

In light of this responsibility, the NTSB holds forums, symposiums, and conferences concerning transportation issues the agency determines warrant further interest or research. The NTSB's proposed regulatory text for § 845.21 reflects this objective, as it includes a statement that the agency does not hold such proceedings for purposes of obtaining evidence for a specific investigation of an accident or incident.

We also appreciate the USCG's comment regarding § 845.21(b). Specifically, our proposed text stated forums, symposiums, and conferences “may have a relationship to previous or ongoing investigative activities; however, their purpose is not to obtain evidence for a specific investigation.”

The clear purpose of NTSB forums, symposiums, and conferences is to focus attention on and educate the public, transportation regulators, and the NTSB itself on key transportation safety issues. Taking advantage of the educational opportunities these proceedings provide helps to ensure comprehensive NTSB investigations. Our acknowledgement in the regulatory text that such proceedings are not held for obtaining evidence, but for focusing attention, raising awareness, encouraging dialogue, educating the agency, or generally advancing or developing safety recommendations, is consistent with our past practices and our statutory responsibility, pursuant to 49 U.S.C. 1116. Given the purpose of these proceedings, as described in the proposed text for § 845.21, we decline to alter the text, as we do not believe the proceedings could result in premature or incomplete findings and recommendations.

Regarding our proposed text describing public dockets, which contain information pertinent to an investigation, the USCG recommends we include text stating we will coordinate with the USCG concerning public release of information in marine investigations.

In its comment, AAR mentions § 845.31 in reiterating its position that the changes the NTSB proposed in part 845 are beyond the scope of the agency's authority. Regarding the text of § 845.31, AAR states the language would allow the NTSB to open a public docket “concerning a safety study or report, special investigation report, or other agency product” in addition to doing so for an actual investigation.

AAR also mentions § 845.30(b) in the context of whether the section encompasses documents beyond the scope of the NTSB's authority. AAR states § 845.30(b) “covers `Board Products' and now includes (a) NTSB studies and reports `of more than one event that share commonalities', (b) safety studies and reports, and (c) safety recommendations `as a stand-alone Board product.' ” With regard to all the sections AAR identified as containing language that exceeds the scope of the NTSB's authorization, AAR states, “NTSB occupying itself with these types of activities will divert resources from the critical mission given to NTSB by Congress at 49 U.S.C. 1131.” AAR, however, mentions the railroads support public education and involvement, “particularly in matters related to safety,” but contends the NTSB's proposed text describes activities beyond the scope of NTSB's statutory authority.

Regarding the USCG's comment recommending we include text stating for marine investigations, we will coordinate release of public dockets in advance with the USCG, although we decline to adopt this change in § 845.31. Section 845.31, which is largely duplicative of the existing version of § 845.50, describes public dockets in general terms, and provides information concerning how the public may obtain a copy of a public docket. The NTSB believes specific protocols concerning coordination with other agencies is more suitable for an interagency agreement or discussion.

The NTSB disagrees with AAR's opinion that the NTSB should not conduct safety studies and issue reports. As discussed above, Congress specifically directed the NTSB to conduct safety studies on a variety of issues. In addition, the NTSB's responsibility to issue safety recommendations is clear, both in the agency's authorizing legislation and legislative history. 49 U.S.C. 1135; H.R. Rep. No. 103-239(I) at 1 (1993) (emphasizing the importance of the NTSB's safety recommendations and stating that such recommendations “have saved countless human lives”). As a result of this statutory direction, the NTSB will not alter its practice of conducting safety studies, issuing safety recommendations, and creating and issuing other types of documents that will improve transportation safety. The agency can only achieve its broad mandate by issuing such documents. The NTSB's choice of the term “Board products” will ensure adequate flexibility in the future, to encompass a variety of documents the agency determines will aid in achieving the ultimate goal of improving transportation safety.

Although no comments addressed the issue of whether the NTSB's disposition of a petition for reconsideration or modification should be subject to judicial review, the agency notes a recent judicial order denying a petition for review. On June 19, 2015, the Court of Appeals for the District of Columbia Circuit held the NTSB's disposition of a petition for reconsideration was not subject to a federal court's review. Joshi v. Nat'l Transp. Safety Bd., 791 F.3d 8 (D.C. Cir. 2015), pet. for cert. filed, 2015 WL 7593160 (Nov. 17, 2015). The Joshi case arose out of an aircraft accident in which the pilot and four passengers died in Indiana in April 2006.

The agency denied the petition for reconsideration, and the petitioner sought review of both the NTSB's reports of its investigation and the response to his petition for reconsideration. The appellate court held that, because neither the reports nor the response can be considered a final order subject to judicial review, the court lacked jurisdiction to hear the case.

In reaching its conclusion, the court cited 49 CFR 831.4 (“Nature of investigation”), which states the NTSB uses its investigations “to ascertain measures that would best tend to prevent similar accidents or incidents in the future.” 49 CFR 831.4. The court went on to quote the regulation further, which states NTSB investigations are considered “fact-finding proceedings with no formal issues and no adverse parties. They are not subject to the provisions of the Administrative Procedure Act and are not conducted for the purpose of determining the rights or liabilities of any person.” Id.; Joshi, 791 F.3d at 12.

The court stated it lacked jurisdiction to consider not only the agency's reports and conclusions, but it also could not review the NTSB's denial of the petition for reconsideration. The court based this conclusion on the fact that the reconsideration procedure the petitioner used was not created by any statute, but was a process set forth in the NTSB's regulations. The court described the process as one that allows the agency to receive new evidence after it completes an accident investigation and noted this procedure functions to ensure the NTSB “develops safety recommendations based on the most complete record possible.” 791 F.3d at 12. As a result, the court characterized petitions for reconsideration as “simply another stage of the accident investigation procedure.” Id. Therefore, the NTSB's disposition of petitions are not subject to review in federal court. The NTSB believes it is worthwhile to mention the Joshi decision in this rulemaking document, due to its relevance to the NTSB's disposition of petitions for reconsideration.

In this final rule, the NTSB re-inserts the phrase “in the event of a catastrophic accident” within § 845.4 (“Determination to hold hearing”). The regulatory text of the NPRM did not include this phrase, even though the phrase currently exists in the regulatory text of § 845.10. Upon further evaluation of the regulation, the NTSB has determined it is prudent to retain the phrase.

The NTSB's NPRM proposed two sections that both described the procedure of providing notice of the time and place of the investigative hearing. Section 845.5(c)(1) proposed text stating the “NTSB” would provide notice of the time and place of the investigative hearing to all known interested persons. Section 845.7 proposed text stating the investigative hearing officer, upon designation by the NTSB Chairman, would have the authority to give notice concerning the time and place of investigative hearing. While the text of these sections is not inconsistent, and is identical to the language that exists in the current versions of §§ 845.12 and 845.21, the NTSB nevertheless believes, as an administrative matter, it is appropriate to remove from § 845.5(c)(1) the statement that, “[t]he NTSB will provide notice of the time and place of the investigative hearing. . . .” The NTSB provides such notice by way of delegating to the hearing officer the responsibility and the authority to do so. In the interest of providing regulations that are concise and abundantly clear, the NTSB removes the aforementioned statement from § 845.5(c)(1). In addition, in § 845.7, the NTSB herein adds the phrase, “or a Board Member designated by the Chairman” to the introductory text stating the investigative hearing officer, upon designation by the NTSB Chairman or a Board Member designated by the Chairman will have the list of “powers” that follows within the section. This addition will ensure the designation of a hearing officer can occur at times the NTSB Chairman has delegated his or her authority.

In the NPRM, the NTSB included a regulatory analysis section concerning various Executive Orders and statutory provisions. 80 FR 14341 (Mar. 19, 2015). The NTSB did not receive any comments concerning the results of the analysis. The NTSB again notes the following concerning such Executive Orders and statutory provisions.

This final rule is not a significant regulatory action under Executive Order 12866, “Regulatory Planning and Review.” Therefore, Executive Order 12866 does not require a Regulatory Assessment, and the Office of Management and Budget (OMB) has not reviewed this proposed rule under Executive Order 12866. In addition, on July 11, 2011, the President issued Executive Order 13579, “Regulation and Independent Regulatory Agencies,” 76 FR 41587, July 14, 2011). Section 2(a) of the Executive Order states:

This rule does not require an analysis under the Unfunded Mandates Reform Act, 2 United States Code (U.S.C.) 1501-1571, or the National Environmental Policy Act, 42 U.S.C. 4321-4347.

The NTSB has also analyzed these amendments in accordance with the principles and criteria contained in Executive Order 13132, “Federalism.” This final rule does not contain any regulations that would: (1) Have a substantial direct effect on the states, the relationship between the national government and the states, or the distribution of power and responsibilities among the various levels of government; (2) impose substantial direct compliance costs on state and local governments; or (3) preempt state law. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.

The NTSB is also aware that the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires each agency to review its rulemaking to assess the potential impact on small entities, unless the agency determines a rule is not expected to have a significant economic impact on a substantial number of small entities. The NTSB certifies this final rule will not have a significant economic impact on a substantial number of small entities.

Regarding other Executive Orders and statutory provisions, this final rule also complies with all applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, “Civil Justice Reform,” to minimize litigation, eliminate ambiguity, and reduce burden. In addition, the NTSB has evaluated this rule under: Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights”; Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks”; Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments”; Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use”; and the National Technology Transfer and Advancement Act, 15 U.S.C. 272 note. The NTSB has concluded this rule does not contravene any of the requirements set forth in these Executive Orders or statutes, nor does this rule prompt further consideration with regard to such requirements.

For the reasons discussed in the preamble, the NTSB revises 49 CFR part 845 to read as follows:

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

The 2015 Pacific cod TAC specified for catcher vessels greater than or equal to 60 feet (18.3 m) LOA using pot gear in the BSAI is 13,641 metric tons (mt) as established by the final 2015 and 2016 harvest specifications for groundfish in the BSAI (80 FR 11919, March 5, 2015) and reallocations (80 FR 57105, September 22, 2015, 80 FR 65971, October 28, 2015, and 80 FR 76250, December 8, 2015). The Regional Administrator has determined that catcher vessels greater than or equal to 60 feet (18.3 m) LOA using pot gear in the BSAI will not be able to harvest 1,750 mt of the remaining 2015 Pacific cod TAC allocated to those vessels under § 679.20(a)(7)(ii)(A)(5).

The 2015 Pacific cod TAC specified for catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear in the BSAI is 12,380 metric tons (mt) as established by the final 2015 and 2016 harvest specifications for groundfish in the BSAI (80 FR 11919, March 5, 2015) and reallocations (80 FR 51757, August 26, 2015, and 80 FR 57105, September 22, 2015). The Regional Administrator has determined that catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear in the BSAI will not be able to harvest 1,750 mt of the remaining 2015 Pacific cod TAC allocated to those vessels under § 679.20(a)(7)(ii)(A)(2).

Therefore, in accordance with § 679.20(a)(7)(iii)(A) and § 679.20(a)(7)(iii)(C), NMFS reallocates 3,500 mt of Pacific cod to C/Ps using hook-and-line gear in the Bering Sea and Aleutian Islands management area.

The harvest specifications for Pacific cod included in the final 2015 harvest specifications for groundfish in the BSAI (80 FR 11919, March 5, 2015, 80 FR 51757, August 26, 2015, 80 FR 57105, September 22, 2015 and 80 FR 65971, October 28, 2015, and 80 FR 76250, December 8, 2015) are revised as follows: 11,891 mt for catcher vessels greater than or equal to 60 feet (18.3 m) LOA using pot gear, 10,630 mt for catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear, and 118,871 mt for C/Ps using hook-and-line gear.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the reallocation of Pacific cod specified from multiple sectors to C/Ps using hook-and-line gear in the Bering Sea and Aleutian Islands management area. Since these fisheries are currently open, it is important to immediately inform the industry as to the revised allocations. Immediate notification is necessary to allow for the orderly conduct and efficient operation of this fishery, to allow the industry to plan for the fishing season, and to avoid potential disruption to the fishing fleet as well as processors. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of December 15, 2015.

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

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