Federal Register Vol. 81, No.128,

Background

On May 24, 2016, the FAA published a final rule entitled, “Acceptance Criteria for Portable Oxygen Concentrators Used On Board Aircraft” (81 FR 33098).

The final rule affects the use of POCs on board aircraft in operations conducted under title 14 of the Code of Federal Regulations (14 CFR) parts 121, 125, and 135, by replacing the existing FAA case-by-case approval process for each make and model of POC in Special Federal Aviation Regulation (SFAR) No. 106, with FAA acceptance criteria. Under SFAR No. 106, each time the FAA approves a specific model of POC for use on board aircraft, the agency updates the list of approved POCs in the SFAR.

The final rule removes SFAR No. 106 and replaces it with POC acceptance criteria and specific labeling requirements to identify POCs that conform to the acceptance criteria. POCs that conform to the final rule acceptance criteria will be allowed on board aircraft without additional FAA review and rulemaking.

As with existing requirements for FAA approval of POCs that may be used on aircraft, the final rule acceptance criteria and labeling requirement only apply to POCs intended for use on board aircraft.

However, the final rule was published with an incorrect references to AC 120-95B, when the new AC is actually AC 120-95A.

In FR Doc. 2016-11908, pages 33102, 33111, and 33113, in the Federal Register of May 24, 2016, make the following corrections:

1. On page 33102, third column, footnote 5, first line, correct “AC 120-95B” to “AC 120-95”;

2. On page 33111, in the first column, tenth line from the bottom, correct “AC 120-95B” to read as “AC 120-95A”;

3. On page 33113, in the first column, third line from the top in parenthesis, correct “AC 120-95B” to read as “AC 120-95A”;

4. On page 33113, in the second column, second paragraph, thirteenth line, correct “AC 120-95B” to read as “AC 120-95A”.

The Federal Aviation Administration (FAA's) authority to issue rules on aviation safety is found in title 49 of the United States Code. 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. The Secretary of Transportation's authority to regulate the transportation of hazardous materials (“hazmat”) by air is in chapter 51 of title 49; civil penalty authority is in section 5123. The Secretary's authority to regulate commercial space transportation may be found at 51 U.S.C. subtitle V, sections 50901-50923 (chapter 509), which provides for the Department of Transportation (DOT), and, through delegation, the FAA to impose civil penalties on persons who violate chapter 509, a regulation issued under chapter 509, or any term or condition of a license or permit issued or transferred under chapter 509. 51 U.S.C. 50906(h)-(i), 50917.

This rule implements the Federal Civil Penalties Inflation Adjustment Act of 1990 (FCPIAA), Public Law (Pub. L.) 101-410, as amended by the Debt Collection Improvement Act (DCIA) of 1996, Public Law 104-134, and the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (2015 Act), Public Law 114-74, codified at 28 U.S.C. 2461 note.

The FCPIAA, DCIA, and the 2015 Act require Federal agencies to adjust minimum and maximum civil penalty amounts for inflation to preserve their deterrent impact. The 2015 Act amended the formula and frequency of inflation adjustments. It requires an initial catch-up adjustment in the form of an interim final rule, followed by annual adjustments of penalty amounts. The amount of the adjustment must be made using a strict statutory formula discussed in more detail below.

The FCPIAA determines inflationary adjustments by increasing civil penalties by a cost-of-living adjustment (COLA). Under the FCPIAA, as amended by the 2015 Act, the COLA for each civil penalty is normally the percent change between the U.S. Department of Labor's Consumer Price Index for all-urban consumers (CPI-U) for the month of October of the calendar year preceding the adjustment and the CPI-U for the month of October of the previous calendar year.

However, under the 2015 Act, the FAA must first use a different “catch-up adjustment” formula. To determine the amount of the catch-up, it must use the percent change between the CPI-U from the October of the calendar year in which the penalty was last set or adjusted by statute or regulation other than by inflation adjustments under the FCPIAA and the CPI-U from the October preceding the adjustment. The increase must be rounded to the nearest $1, and can be no greater than 150% of the penalty levels in effect on the date of the 2015 Act's enactment, which was November 2, 2015.

The 2015 Act directed the Office of Management and Budget (OMB) to issue guidance on implementing the inflation adjustments required by the 2015 Act no later than February 29, 2016.1 On February 24, 2016, the OMB released this required guidance, which contains complete instructions on how to calculate the catch-up adjustment.2 An agency calculates the catch-up adjustment by multiplying the maximum or minimum penalty amount by a multiplier calculated based on the year the penalty was last set or adjusted by Congress or rulemaking (other than inflation adjustments under the FCPIAA). As examples, here are how the adjustments for 49 U.S.C. 5123(a)(1) (hazmat) and 51 U.S.C. 50917 (commercial space) were calculated:

(1) Find the multiplier listed in the OMB guidance for the year the penalty was last set or reset.

Section 5123 was last adjusted in 2012, so the multiplier is 1.02819.

Section 50917 was last set in 1984, so the multiplier is 2.25867.

(2) Multiply the penalty amount by the multiplier, and round to the nearest dollar.

(3) Multiply the 2015 penalty amount (including any prior adjustments under the Inflation Adjustment Act) by 2.5,3 and round to the nearest dollar to find the 150% cap for the catch-up adjustment.

(4) Compare the dollar amount from (3) to the dollar amount in (2). If (2) < (3), (2) is below the 150% cap and is the adjusted penalty. If (2) > (3), the 150% cap is applied and becomes the adjusted penalty.

$77,114 < $187,500. Therefore, $77,114 is the adjusted penalty.

$225,867 < $300,000. Therefore, $225,867 is the adjusted penalty.

The following chart shows the values used in the calculations and the rounded catch-up adjustment. All of the penalty adjustments fell below the 150% cap on the catch-up adjustment:

The 2015 Act allows an agency to request that a catch-up adjustment be lower than what is calculated using the 2015 Act's formula. This requires a determination by the head of the agency, following a notice of proposed rulemaking, opportunity for comment, and a final rule, that the catch-up adjustment will have a negative economic impact or has social costs that outweigh the benefits. In addition, the director of OMB must concur with the agency head's determination as the adjustment is an economic transfer. The Administrator of the FAA does not believe that any of the catch-up adjustments in this rule will have a negative economic impact or have social costs that outweigh their benefits.

The FAA codified the statutory formula for inflation adjustments under the FCPIAA and DCIA in subpart H of 14 CFR part 13. Rather than amending the subpart to match the 2015 Act, paragraphs (a)-(c) of § 13.305 containing the formula are being deleted as unnecessarily duplicative of the statute. Section 13.303 is also being deleted because it duplicates definitions of terms given in the statute. Section 13.301(a) is being amended to include a reference to the 2015 Act.

The current version of 14 CFR 406.9(a) states the maximum civil penalty that can be imposed under its authority “as adjusted for inflation.” This clause is being deleted as redundant and unnecessary. The maximum penalty amount as amended by this rule will already be adjusted for inflation, as will the future annual adjustments required by the 2015 Act. Retaining this clause could also create a false impression that the penalty amount is adjusted for inflation other than by the 2015 Act. Therefore, the “as adjusted for inflation” clause is being removed.

Under the Administrative Procedure Act, 5 U.S.C. 553(b)(B), a final rule may be issued without public notice and comment if the agency finds good cause that notice and comment are impracticable, unnecessary, or contrary to public interest. Good cause exists in this case to dispense with public notice and comment because adjustments to civil penalties for inflation are required by Congress, as set forth in Section 5 of the FCPIAA, as amended, in order to maintain the deterrent effect of civil penalties and promote compliance with the law. As the Administrator of the FAA has determined that none of the catch-up adjustments should be lowered due to negative economic impact or social costs that outweigh benefits, there is no place where the FAA might apply discretion or policy judgments in calculating the adjustments. The formula for determining the adjustments is laid out by statute and cannot be amended by the FAA, even in response to public comment. Accordingly, public comment is unnecessary in this case.

Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 and Executive Order 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, the Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA's analysis of the economic impacts of this final rule.

Department of Transportation Order DOT 2100.5 prescribes policies and procedures for simplification, analysis, and review of regulations. If the expected cost impact is so minimal that a proposed or final rule does not warrant a full evaluation, this order permits that a statement to that effect and the basis for it to be included in the preamble if a full regulatory evaluation of the cost and benefits is not prepared. Such a determination has been made for this final rule. The reasoning for this determination follows.

This rule adjusts for inflation to civil penalties for violations of aviation safety, hazmat, and commercial space provisions in accord with the Federal Civil Penalties Inflation Adjustment Act Improvement Act (the 2015 Act), Public Law 114-74, Section 701 (November 2, 2015). The Director of OMB provided guidance to agencies in a February 24, 2016 memorandum on how to calculate the initial adjustment required by the 2015 Act. The FAA must follow the direction of Congress and is using statutorily-mandated guidance provided by OMB in calculating the catch-up inflation adjustment. Applying Congress's directions and OMB's guidance, the FAA has determined that this rule imposes no additional social cost. Civil penalties are, like taxes, an economic transfer. OMB guidance A-4 states that transfers are monetary payments from one group to another and thus not a social cost. OMB further dictates that transfers should not be included in estimates of the benefits and costs due to regulation. As transfers do not add social cost, this is a minimal cost rule. OMB also directs that distributional effects of transfers should be considered. The term “distributional effect” refers to the impact of a regulatory action across the population and economy, divided up in various ways (e.g. income groups, race, sex, industrial sector, geography). Distributional effects may arise through transfer payments like civil penalties that stem from regulatory enforcement action. While persons paying civil penalties may experience distributional effects, these discrete effects are far outweighed by the positive effects of civil penalties. Compliance with FAA statutes and regulations is essential to safety. Civil penalties are a punishment for those who violate FAA statutes and regulations. They also deter future violations. As a result, they support the FAA's mission of aviation, hazmat, and commercial space safety, which benefits the public at large. Thus, the cost impact of this rulemaking is minimal, and a full regulatory evaluation is not required in accordance with DOT Order 2100.5.

The FAA has determined that this final rule is not a “significant regulatory action” as defined in section 3(f) of Executive Order 12866 because it does not have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities for the following reasons:

(i) Based on the FAA's review of civil penalties assessed in fiscal year 2015, the total amount assessed was about $18 million. Even if this total itself were increased to the catch-up adjustment cap of a 150% increase (which is not being done here), it would only result in an increase of $27 million, bringing the total amount assessed to $45 million, which is substantially less than $100 million. Thus, the amount of the statutorily mandated inflation adjustment in this rulemaking will not have an annual effect on the economy of $100 million or more; and

(ii) The process of determining whether or not a civil penalty is imposed is not affected by this change as this rulemaking only impacts the minimum and maximum possible amount of the penalty.

The FAA has further determined that this final rule is not a “significant regulatory action” because it does not (a) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency, (b) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (c) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in Executive Order 12866. Finally, the FAA has determined that this final rule is not “significant” as defined in DOT's Regulatory Policies and Procedures.

The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation.” To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration.” The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.

Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA.

However, if an agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.

The FAA believes that this final rule does not have a significant economic impact on a substantial number of small entities for the following reasons. While this final rule is likely to impact a substantial number of small entities, it will impose only minimal costs. This final rule simply identifies the amount of the inflation adjustment to existing civil monetary penalty maximums and minimums for violations of the statutory and regulatory provisions the FAA enforces. The penalty amounts are those specified by statute or called for under the inflation adjustment statutes, and the information in this rule is required by the Debt Collection Improvement Act of 1996.7 As civil penalties are economic transfers, by OMB direction these are not included in the calculation of social costs.

In addition, FAA has determined the RFA does not apply to this rulemaking. The 2015 Act requires FAA to publish an interim final rule and there is good cause for issuing this rule without notice and comment under 5 U.S.C. 553(b)(B). The Small Business Administration's A Guide for Government Agencies: How to Comply with the Regulatory Flexibility Act (2003), provides that:

The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such as the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards.

The FAA has assessed the potential effect of this final rule and determined that it would impose identical inflation adjusted civil penalties on domestic and international entities that violate aviation safety, hazmat, and commercial space provisions in titles 49 and 51 of the U.S. Code and regulations issued under those provisions, and thus would have a neutral trade impact. Furthermore, the inflation adjustment is a legitimate domestic objective preserving the existing deterrent impact of aviation, hazmat, and commercial space safety statutes and regulations. Therefore, we have determined that this rule will result in a neutral impact on international trade.

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $155 million in lieu of $100 million. This final rule does not contain such a mandate; therefore, the requirements of Title II of the Act do not apply.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. The FAA has determined that there are no current or new requirements for information collection associated with this rule.

In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to conform to International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has determined that there are no ICAO Standards and Recommended Practices that correspond to these regulations.

FAA Order 1050.1F identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.6.f, which covers regulations not expected to cause any potentially significant environmental impacts. The FAA has also determined that there are no extraordinary circumstances requiring an environmental assessment or environmental impact statement.

The FAA has analyzed this final rule under the principles and criteria of Executive Order 13132, Federalism. The agency determined that this action will not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, does not have federalism implications.

The FAA has analyzed this final rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). The agency has determined that it is not a “significant energy action” under the executive order and it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

You can get an electronic copy of rulemaking documents using the Internet by—

1. Searching the Federal eRulemaking Portal (http://www.regulations.gov);

2. Visiting the FAA's Regulations and Policies Web page at http://www.faa.gov/regulations_policies; or

3. Accessing the Government Printing Office's Web page at http://www.thefederalregister.org/fdsys.

You can also get a copy by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW., Washington, DC 20591, or by calling (202) 267-9680. Make sure to identify the amendment number or docket number of this rulemaking.

In consideration of the foregoing, the Federal Aviation Administration amends chapters I and III of title 14, Code of Federal Regulations as follows:

On November 22, 2011, Kestrel Aircraft Company applied for a type certificate for their new Model K-350. The Kestrel Aircraft Company Model K-350 is a single-engine turboprop airplane with the primary structure constructed largely of carbon and epoxy composite material. The turboprop engine will be a Honeywell Model TPE331-14GR-801KT that is integrated with a Hartzell 4 bladed, 110-inch carbon composite propeller. The standard seating configuration offers a one plus five cabin (one pilot and five passengers). Alternate interior configurations will be available from two seats (cargo configuration) up to eight seats total. The K-350 will incorporate an integrated avionics system, retractable landing gear, and a conventional tail configuration.

Specifications expected for the K-350 include the following:

The K-350 will be certified for single-pilot operations under part 91 and part 135 operating rules. The following operating conditions will be included:

Kestrel Aircraft Company plans to utilize a rechargeable lithium main battery on their new Model K-350 turboprop airplane. The current regulatory requirements for part 23 airplanes do not contain adequate requirements for the application of rechargeable lithium batteries in airborne applications. This type of battery possesses certain failure and operational characteristics with maintenance requirements that differ significantly from that of the nickel-cadmium (Ni-Cd) and lead-acid rechargeable batteries currently approved in other normal, utility, acrobatic, and commuter category airplanes. Therefore, the FAA is issuing this special condition to require that (1) all characteristics of the rechargeable lithium batteries and their installation that could affect safe operation of the K-350 are addressed, and (2) appropriate Instructions for Continued Airworthiness that include maintenance requirements are established to ensure the availability of electrical power from the batteries when needed.

Under the provisions of 14 CFR 21.17, Kestrel Aircraft Company must show that the K-350 meets the applicable provisions of part 23, as amended by amendments 23-1 through 23-62 thereto.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 23) do not contain adequate or appropriate safety standards for the K-350 because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same or similar novel or unusual design feature, the special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the K-350 must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36, and the FAA must issue a finding of regulatory adequacy under § 611 of Public Law 92-574, the Noise Control Act of 1972.

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type-certification basis under § 21.17(a)(2).

The K-350 will incorporate the following novel or unusual design feature:

Installation of a rechargeable lithium battery as the main or engine start aircraft battery.

The current regulatory requirements for part 23 airplanes do not contain adequate requirements for the application of rechargeable lithium batteries in electrical system design. This type of battery possesses certain failures with operational characteristics and maintenance requirements that differ significantly from that of the Ni-Cd and lead-acid rechargeable batteries currently approved in other normal, utility, acrobatic, and commuter category airplanes. Therefore, the FAA is issuing this special condition to require that (1) all characteristics of the rechargeable lithium batteries and their installation that could affect safe operation of the K-350 are addressed, and (2) appropriate Instructions for Continuous Airworthiness which include maintenance requirements are established to ensure the availability of electrical power from the batteries when needed.

As previously mentioned, Kestrel Aircraft Company plans to utilize a rechargeable lithium main battery on their new Model K-350 turboprop airplane. At the Kestrel Preliminary Type Certification Board Meeting it was brought to the attention of the FAA that the lithium battery used in the K-350 will be qualified to RTCA standards DO-311, titled Minimum Operational Performance Standards for Rechargeable Lithium Battery Systems. Additionally, on July 18, 2013, Kestrel advised the Civil Aviation Contingency Operations (CACO) that the battery will have Technical Standard Order Authorization for TSO-C179a,1 titled Permanently Installed Rechargeable Lithium Cells, Batteries and Battery Systems. Finally, Kestrel plans to use the same manufacturer for both the lithium battery and the battery controller.

Presently, there is limited experience with use of rechargeable lithium batteries in applications involving commercial aviation. However, other users of this technology, ranging from wireless telephone manufacturers to the electric vehicle industry, have noted safety problems with lithium batteries. These problems include overcharging, over-discharging, and flammability of cell components, described in the following:

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

2. Over-discharging: Discharge of some types of lithium battery cells beyond a certain voltage (typically 2.4 volts) can cause corrosion of the electrodes of the cell, resulting in loss of battery capacity that cannot be reversed by recharging. This loss of capacity may not be detected by the simple voltage measurements commonly available to flight crews as a means of checking battery status, which is a problem shared with Ni-Cd batteries.

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

These problems experienced by users of lithium batteries raise concern about the use of these batteries in commercial aviation. The intent of the special condition is to establish appropriate airworthiness standards for lithium battery installations in the K-350 and to ensure, as required by §§ 23.1309 and 23.601, that these battery installations are neither hazardous nor unreliable.

In showing compliance with the special conditions herein, paragraphs (a)(1) through (a)(8), and the RTCA document, Minimum Operational Performance Standards for Rechargeable Lithium Battery Systems, DO-311, may be used. The list of planned DO-311 tests should be documented in the certification or compliance plan and agreed to by the CACO. Alternate methods of compliance other than DO-311 tests must be coordinated with the directorate and CACO.

Notice of proposed special conditions No. 23-15-01-SC 2 for the Kestrel Aircraft Company Model K-350 Turboprop airplanes was published in the Federal Register on November 4, 2015 (80 FR 68281). No comments were received, and the special conditions are adopted as proposed.

These special conditions are not intended to replace § 23.1353(a)(b)(c)(d)(e) at amendment 23-62 in the certification basis of Model K-350 airplanes. These special conditions apply only to rechargeable lithium batteries and lithium battery systems and their installations. The requirements of § 23.1353 at amendment 23-62 remains in effect for batteries and battery installations on K-350 series that do not use newly technologically developed batteries.

As previously discussed, these special conditions are applicable to the K-350. Should Kestrel Aircraft Company apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the special conditions would apply to that model as well.

Under standard practice, the effective date of final special conditions would be 30 days after the date of publication in the Federal Register; however, as the certification date for the Kestrel Aircraft Company Model K-350 Turboprop airplane is imminent, the FAA finds that good cause exists to make these special conditions effective upon issuance.

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

On March 16, 2016, the Federal Register published a document designated as “Docket No. FAA-2015-8298; Special Conditions No. 25-611-SC,” (81 FR 13969). That document issued special conditions pertaining to dynamic test requirements for single-occupant oblique (side-facing) seats with inflatable restraints on Boeing Model 777-300ER airplanes. As published, the special conditions are incomplete. The applicant was aware of the complete set of conditions at the time of the original, incomplete publication.

The following special conditions replace the entire special conditions section of the final special conditions document [FR Doc. 2016-05995 Filed 3-15-16; 8:45 a.m.], published on March 16, 2016 (81 FR 13969). The introductory language was previously published and is not changed.

In addition to the requirements of § 25.562:

Compliance with § 25.562(c)(5) is required, except that, if the anthropomorphic test device (ATD) has no apparent contact with the seat and related structure but has contact with an airbag, a HIC unlimited score in excess of 1000 is acceptable, provided the HIC15 score (calculated in accordance with 49 CFR 571.208) for that contact is less than 700.

If a seat is installed aft of structure (e.g. interior wall or furnishings) that does not provide a homogenous contact surface for the expected range of occupants and yaw angles, then additional analysis and tests may be required to demonstrate that the injury criteria are met for the area that an occupant could contact. For example, if different yaw angles could result in different airbag device performance, then additional analysis or separate tests may be necessary to evaluate performance.

a. The seating system must protect the occupant from experiencing serious neck injury. The assessment of neck injury must be conducted with the airbag device activated, unless there is reason to also consider that the neck-injury potential would be higher for impacts below the airbag-device deployment threshold.

b. The Nij, calculated in accordance with 49 CFR 571.208, must be below 1.0, where Nij =Fz/Fzc + My/Myc, and Nij critical values are:

c. In addition, peak upper neck Fz must be below 937 lb in tension and 899 lb in compression.

d. Rotation of the head about its vertical axis relative to the torso is limited to 105 degrees in either direction from forward-facing.

e. The neck must not impact any surface that would produce concentrated loading on the neck.

a. The lumbar spine tension (Fz) cannot exceed 1200 lb.

b. Significant concentrated loading on the occupant's spine, in the area between the pelvis and shoulders during impact, including rebound, is not acceptable. During this type of contact, the interval for any rearward (X-axis direction) acceleration exceeding 20g must be less than 3 milliseconds as measured by the thoracic instrumentation specified in 49 CFR part 572, subpart E, filtered in accordance with SAE recommended practice J211/1, “Instrumentation for Impact Test—Part 1—Electronic Instrumentation.”

c. The occupant must not interact with the armrest or other seat components in any manner significantly different than would be expected for a forward-facing seat installation.

Any part of the load-bearing portion of the bottom of the ATD pelvis must not translate beyond the edges of the seat bottom seat-cushion supporting structure.

Axial rotation of the upper leg (about the Z-axis of the femur, per SAE J211/1) must be limited to 35 degrees in the strike direction from the normal seating position. Evaluation during rebound need not be considered.

Longitudinal tests conducted to measure the injury criteria above must be performed with the FAA Hybrid III ATD, as described in SAE 1999-01-1609, “A Lumbar Spine Modification to the Hybrid III ATD For Aircraft Seat Tests.” The tests must be conducted with an undeformed floor, at the most-critical yaw cases for injury, and with all lateral structural supports (e.g. armrests or walls) installed.

The inflatable lapbelts must meet special conditions no. 25-187A-SC, “Boeing Model 777 Series Airplanes; Seats with Inflatable Lapbelts.”

1. Because this type of protection system may or may not activate during various crash conditions, the applicant must demonstrate that the injury criteria listed in these special conditions are not exceeded in an event which is slightly below the activation level of the airbag system.

2. Additionally, as indicated in special conditions no. 25-187A-SC, inflatable lapbelts must be shown to not affect emergency-egress capabilities in the main aisle, cross-aisle, and passageway.

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Airbus Model A300 series airplanes; and Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called Model A300-600 series airplanes). The NPRM published in the Federal Register on December 31, 2015 (80 FR 81786) (“the NPRM”).

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2014-0272, dated December 12, 2014 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus Model A300 series airplanes; and Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called Model A300-600 series airplanes). The MCAI states:

The corrective actions include a repair using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the EASA; or Airbus's EASA Design Organization Approval (DOA).

You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-8134.

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

FedEx asked that the corrective actions identified in paragraph (i) of the proposed AD be clarified. FedEx stated that paragraph (h)(1) of the proposed AD specifies “If one or more of the hole diameters is outside the tolerance of the nominal diameter, and outside the tolerance of the first and second oversize: Do the applicable corrective actions required by paragraph (i) of this AD.” FedEx added that paragraph (i) of the proposed AD specifies “If, during any inspection required by this AD, any crack is found, or one or more of the hole diameters are outside the tolerance of the nominal diameter: Repair before further flight using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA); or Airbus's EASA Design Organization Approval (DOA).” FedEx noted that paragraph (i) should specify “one or more of the hole diameters are outside the tolerance of the nominal diameter and outside the tolerance of the first and second oversize” to match the language in paragraph (h)(1) of the proposed.

We agree. We have confirmed that the language in paragraph (i) of this AD should match the language in paragraph (h)(1) of this AD. We have changed paragraph (i) of this AD accordingly.

United Parcel Service (UPS) asked that we revise the compliance time for the rototest inspections specified by paragraph (h) of the proposed AD to a threshold based on total service time, rather than calendar time alone. UPS stated that, based on reported findings to date, the crack growth rate is so slow it will not affect the immediate airworthiness of the airplane. UPS suggested that we add a threshold of 11,900 total flight cycles.

We do not agree with the commenter's request. The commenter provided no data to substantiate the proposed compliance time based on flight cycles. In developing an appropriate compliance time for this AD, we considered not only the urgency associated with the subject unsafe condition, but also the manufacturer's recommendations, EASA's recommendations, and the practical aspect of accomplishing the required inspections within a period of time that corresponds to the normal scheduled maintenance for most affected operators. After considering all the available information, we have determined that the compliance time, as proposed, represents an appropriate interval of time in which the required actions can be performed in a timely manner within the affected fleet, while still maintaining an adequate level of safety. However, affected operators may request an alternative method of compliance (AMOC) to request a change to the compliance time under the provisions of paragraph (j) of this AD by submitting data and analysis substantiating that the change would provide an acceptable level of safety. We have not changed this AD regarding this issue.

UPS asked that the HFEC inspections specified by paragraph (g) of the proposed AD be removed. UPS stated that the HFEC inspection requirement does not enhance airplane safety because only substantial damage can be detected by this method, due to a restricted inspection area. UPS also stated that the smallest crack detectable by an HFEC inspection method is calculated to be 7.5 mm in length, not taking into account the inspection surface radius and the limited access to the inspection area. UPS added that fastener location and potential obstacles affect consistent probe movement, which increases the chance for inconsistent inspection readings.

We do not agree with the commenter's request. The HFEC inspection required by paragraph (g) of this AD is a necessary interim measure intended to find cracking before the required compliance time for the rototest inspection in paragraph (h) of this AD. As the commenter acknowledged, a 7.5-mm crack may be detected during an HFEC inspection within 1,000 flight hours. That same 7.5-mm crack, undetected for 3 years until the rototest inspection is done, could grow and result in reduced structural integrity of the airplane; therefore, the repetitive HFEC inspections must be retained in this AD. If no cracking is found, the HFEC inspection can be repeated, or terminated when the rototest inspection is accomplished. However, affected operators may request approval of an AMOC to do the rototest inspections only, under the provisions of paragraph (j) of this AD by submitting data and analysis, and a compliance schedule, substantiating that the change would provide an acceptable level of safety. We have not changed this AD regarding this issue.

FedEx asked that the typographical errors for the structural repair manual (SRM) references in Airbus Service Bulletin A300-57-6115, dated April 4, 2014, be corrected so FedEx can use them to comply with the NPRM requirements. FedEx stated that Airbus was informed of and acknowledged these typographical errors, but currently no changes have been made to the service information. FedEx noted that the service information listed SRM 51-40-13 for the application of special coatings, but the correct reference is SRM 51-23-20. FedEx also noted that the service information listed SRM 51-40-12 for the application of paint coatings, but the correct reference is SRM 51-23-10.

We agree with the commenter's concerns. We have changed paragraph (g) of this AD to clarify the correct SRM references to be used.

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

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

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

We reviewed the following service information.

• Airbus Service Bulletin A300-57-0257, excluding Appendix 01 and including Appendix 02, dated April 4, 2014.

• Airbus Service Bulletin A300-57-6115, dated April 4, 2014.

We estimate that this AD affects 166 airplanes of U.S. registry.

We also estimate that it takes about 12 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 $169,320, or $1,020 per product.

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

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

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

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

3. Will not affect intrastate aviation in Alaska; and

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

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2008-05-06, Amendment 39-15400 (73 FR 11538, March 4, 2008) (“AD 2008-05-06”). AD 2008-05-06 applied to certain The Boeing Company Model 737-100, -200, -300, -400, and -500 series airplanes. The NPRM published in the Federal Register on January 12, 2016 (81 FR 1345) (“the NPRM”). The NPRM was prompted by reports of cracks in the center wing box longitudinal floor beams, upper chord, and lower chord. The NPRM proposed to continue to require repetitive inspections for fatigue cracking in the longitudinal floor beam web, upper chord, and lower chord located at certain body stations, and repair if necessary. The NPRM also proposed to require, for certain airplanes, an inspection to determine if tapered fillers are installed, and related investigative and corrective actions if necessary. We are issuing this AD to detect and correct fatigue cracking of the upper and lower chords and web of the longitudinal floor beams, which could result in rapid loss of cabin pressure.

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

Boeing stated that it has reviewed the NPRM and concurs with the contents.

Ms. Kathleen Whitworth stated that the NPRM is a good idea because the safety of airline passengers outweighs the extra cost of the added inspection and that she is in full support of the NPRM.

Aviation Partners Boeing stated that accomplishing the Supplemental Type Certificate (STC) ST01219SE (http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgstc.nsf/0/ebd1cec7b301293e86257cb30045557a/$FILE/ST01219SE.pdf) does not affect accomplishment of the actions specified in the NPRM.

We concur with the commenter. We have redesignated paragraph (c) of the proposed AD as paragraph (c)(1) and added a new paragraph (c)(2) to this AD to state that installation of STC ST01219SE (http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgstc.nsf/0/ebd1cec7b301293e86257cb30045557a/$FILE/ST01219SE.pdf) does not affect the ability to accomplish the actions required by this AD. Therefore, for airplanes on which STC ST01219SE is installed, a “change in product” alternative method of compliance (AMOC) approval request is not necessary to comply with the requirements of 14 CFR 39.17.

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

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

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

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

We reviewed Boeing Alert Service Bulletin 737-57A1296, Revision 2, dated April 1, 2015. The service information describes procedures for various inspections for fatigue cracks in the longitudinal floor beam web, upper chord, and lower chord, located at the applicable body stations, repairs (including related investigative and corrective actions), and preventive modifications (including related investigative and corrective actions) that terminate the repetitive inspections. The service information also describes procedures for an inspection to determine if tapered fillers are installed, and related investigative 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 652 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

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

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:

This AD is a final rule that involves requirements affecting flight safety, and we did not provide you with notice and an opportunity to provide your comments prior to it becoming effective. However, we invite you to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that resulted from adopting this AD. The most helpful comments reference a specific portion of the AD, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit them only one time. We will file in the docket all comments that we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this rulemaking during the comment period. We will consider all the comments we receive and may conduct additional rulemaking based on those comments.

On June 3, 2016, we issued Emergency AD 2016-12-51 to correct an unsafe condition for Model AS332L2 and EC225LP helicopters. Emergency AD 2016-12-51 immediately prohibits further flight of Model AS332L2 and EC225LP helicopters. The emergency AD was sent previously to all known U.S. owners and operators of these helicopters.

Emergency AD 2016-12-51 was prompted by Emergency AD No. 2016-0104-E, dated June 2, 2016, issued by EASA, which is the Technical Agent for the Member States of the European Union, to correct an unsafe condition for Airbus Helicopters Model EC 225 LP helicopters. Following a fatal accident in Norway in which the MRH detached from the MGB in-flight, EASA issued Emergency AD No. 2016-0089-E, dated May 3, 2016, to require a one-time inspection of the MGB and to report findings to EASA and Airbus Helicopters. Review of the findings from the inspections prompted Airbus Helicopters to provide further inspections and replacement instructions for correctly installing the MGB suspension bars and attachment fittings. EASA subsequently issued Emergency AD No. 2016-0103-E, dated June 1, 2016, which superseded Emergency AD No. 2016-0089-E, and required inspecting the MGB suspension bar fittings and related base plate assemblies and replacing the attachment hardware. Soon after Emergency AD No. 2016-0103-E was issued, a preliminary report from the Accident Investigation Board Norway indicated metallurgical findings of fatigue and surface degradation in the outer race of a second stage planet gear of the MGB epi-cyclic module. EASA advises that it could not be determined if the fatigue and surface degradation is a contributing factor or if it resulted from another initiating factor. Therefore, pending further investigation to determine the root cause of the reported damage and pending development of mitigating measures by Airbus Helicopters, EASA decided to temporarily ground the fleet as a precautionary measure and issued Emergency AD No. 2016-0104-E on June 2, 2016. EASA included Model AS 332 L2 helicopters to the applicability due to similarities in design that make it subject to the same unsafe condition.

These helicopters have been approved by the aviation authority of France and are approved for operation in the United States. Pursuant to our bilateral agreement with France, EASA, its technical representative, has notified us of the unsafe condition described in the EASA AD. We are issuing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other helicopters of these same type designs.

This AD immediately prohibits flight of all Airbus Helicopters Model AS332L2 and EC225LP helicopters.

We consider this AD to be an interim action. Once the design approval holder develops a modification that addresses the unsafe condition identified in this AD, we might consider additional rulemaking.

We estimate that this AD affects five helicopters of U.S. Registry. There are no costs of compliance with this AD because there are no required maintenance actions.

Providing an opportunity for public comments prior to adopting these AD requirements would delay implementing the safety actions needed to address this known unsafe condition. Therefore, we find the risk to the flying public justifies waiving notice and comment prior to the adoption of this rule because the previously described unsafe condition can adversely affect the airworthiness of the helicopter and the prohibition of all flights must begin immediately.

Since it was found that immediate action was required, notice and opportunity for prior public comment before issuing this AD were impracticable and contrary to the public interest and good cause existed for making Emergency AD 2016-12-51 effective immediately on June 3, 2016, to all known U.S. operators of the specified Airbus helicopters. These conditions still exist and the Emergency AD is hereby published in the Federal Register as an amendment to § 39.13 of the Federal Aviation Regulations (14 CFR 39.13) to make it effective to all persons.

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, 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 to the extent that it justifies making a regulatory distinction; 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

Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian AD CF-2016-16, dated May 20, 2016 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Bombardier, Inc. Model DHC-8-400 series airplanes. The MCAI states:

Corrective actions includes replacing cracked MLG retract actuator rod ends. You may examine the MCAI on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-7422.

Bombardier, Inc. has issued Service Bulletin 84-32-142, dated May 4, 2016. The service information describes procedures for an inspection to determine if certain left and right MLG retract actuator rod ends are installed, repetitive LPIs of the left and right MLG retract actuator rod ends, and replacement of left and right MLG retract actuator rod ends. 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.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are issuing this AD because we evaluated all pertinent information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.

An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because fatigue cracking of the left and right MLG retract actuator rod ends could lead to left or right MLG collapse. Therefore, we determined that notice and opportunity for public comment before issuing this AD are impracticable and that good cause exists for making this amendment effective in fewer than 30 days.

We consider this AD interim action. We are currently considering requiring the replacement of affected left and right MLG retract actuator rod ends with P/N P3A6460, which will constitute terminating action for the inspections required by this AD. However, the planned compliance time for the replacement would allow enough time to provide notice and opportunity for prior public comment on the merits of the replacement.

This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2016-7422; Directorate Identifier 2016-NM-079-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD based on those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this AD.

We estimate that this AD affects 52 airplanes of U.S. registry.

We also estimate that it will take 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 $4,420, or $85 per product.

In addition, we estimate that any necessary follow-on actions will take about 3 work-hours and require parts costing $2,019, for a cost of $2,274 per product. We have no way of determining the number of aircraft that might need these actions.

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

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

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

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

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

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

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

3. Will not affect intrastate aviation in Alaska; and

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

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

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2012-12-04, Amendment 39-17083 (77 FR 36134, June 18, 2012) (“AD 2012-12-04”). AD 2012-12-04 applied to certain The Boeing Company Model 737-300, -400, and -500 series airplanes. The NPRM published in the Federal Register on September 14, 2015 (80 FR 55045) (“the NPRM”). The NPRM was prompted by a determination that, for certain airplanes, the skin pockets adjacent to the ATC antenna are susceptible to widespread fatigue damage. The NPRM proposed to continue to require repetitive external detailed inspections and nondestructive inspections to detect cracks in the fuselage skin along the chem-mill steps at stringers S-1 and S-2R, between STA 400 and STA 460, and repair if necessary. The NPRM also proposed to require a preventive modification of the fuselage skin at crown stringers S-1 and S-2R. In addition, the NPRM proposed to revise certain compliance times. We are issuing this AD to detect and correct fatigue cracking of the fuselage skin panels at the chem-mill steps, which could result in sudden fracture and failure of the fuselage skin panels, and consequent rapid decompression of the airplane.

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

Boeing asked that we change the NPRM preamble, which stated that the proposed AD would reduce the inspection thresholds “and repetitive intervals” for certain airplanes. Boeing stated that the repetitive inspection intervals specified in Boeing Alert Service Bulletin 737-53A1293, Revision 3, dated January 23, 2015, remain unchanged from the previous version of the service information, which was mandated by AD 2012-12-04. Boeing added that Boeing Alert Service Bulletin 737-53A1293, Revision 3, dated January 23, 2015, reduced only the inspection threshold for those airplanes.

We agree with the commenter's request for the reason provided. We have changed the language in the SUMMARY of this final rule accordingly.

Boeing and Southwest Airlines (SWA) asked that we revise paragraph (l)(4) of the proposed AD. Boeing requested that we state that AMOCs approved for AD 2012-12-04 are approved as AMOCs for “all corresponding requirements”—instead of just the requirements of paragraph (g)—of the proposed AD. Boeing stated that this proposed change matches the wording in paragraph (l)(4) of AD 2012-12-04. SWA added that paragraph (l)(4) of the proposed AD does not provide credit for AMOCs approved for the actions specified in paragraphs (f) and (g) of AD 2008-19-03, Amendment 39-15670 (73 FR 56958, October 1, 2008) (“AD 2008-19-03”). (AD 2008-19-03 was superseded by AD 2012-12-04.)

We agree to revise paragraph (n)(4) of this AD (paragraph (l)(4) of the proposed AD) to specify that AMOCs approved for AD 2012-12-04 are approved as AMOCs for all the corresponding provisions of this AD.

It is not necessary, however, to state that AMOCs approved for AD 2008-19-03 are approved for the requirements of this AD. When AD 2008-19-03 was superseded, the corresponding provisions of AD 2008-19-03 were retained in AD 2012-12-04. Therefore, no change to this final rule is necessary in this regard.

Boeing, ASL Airlines France, and SWA asked that we clarify the requirements of paragraph (h) of the proposed AD by separating the actions into two core paragraphs: One paragraph for “Repairs” and one paragraph for the “Preventive Modification.” Boeing stated that tables 1, 2, and 3 of Boeing Alert Service Bulletin 737-53A1293, Revision 3, dated January 23, 2015, address the repair and preventive modification instructions for Group 1 airplanes, and table 5 addresses repair instructions for Group 2 airplanes; therefore table 5 should not be included in paragraph (h)(2) of the proposed AD. Boeing also stated that Note (e) of tables 1, 2, and 3 of Boeing Alert Service Bulletin 737-53A1293, Revision 3, dated January 23, 2015, provides a terminating action provision for the repetitive inspections under the installed preventive modification doubler; therefore a terminating action should be added to paragraph (h)(2) of the proposed AD. ASL Airlines France stated that, as written, paragraph (h) of the proposed AD is confusing because it would require the preventive modification specified in paragraph (h)(2) of the proposed AD to be installed only if cracking is found. SWA stated that Boeing Alert Service Bulletin 737-53A1293, Revision 3, dated January 23, 2015, does not provide repair instructions for cracks found in four or more tear strap bays and certain other conditions, as specified in figure 6 or figure 8 of the Accomplishment Instructions. SWA asked that a provision be added to paragraph (h)(2) of the proposed AD to allow for both new and existing repairs to remain on the airplane if the repair covers all eight chem-mill step inspection areas between STA 410 and STA 450, if approved by the FAA or a Boeing-approved representative.

We agree with the commenters' requests for the reasons provided. We have separated paragraph (h) of the proposed AD into paragraphs (h) and (i) of this AD to clarify the actions identified by the commenters (and have redesignated subsequent paragraphs accordingly).

Boeing asked that we add a new exception to address the preventive modification. Boeing stated that paragraph (j)(3) of the proposed AD addresses repairs, and a similar paragraph needs to be added to address the preventive modification specified in Part 9 of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1293, Revision 3, dated January 23, 2015; Part 9 specifies contacting Boeing for preventive modification instructions. Boeing added that the new exception should be done using a method approved by the FAA or a Boeing approved representative.

We agree with the commenter's request. Part 9 of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1293, Revision 3, dated January 23, 2015, specifies contacting Boeing for modification instructions if an existing repair is installed that was not accomplished in accordance with Boeing Alert Service Bulletin 737-53A1293, Revision 3, dated January 23, 2015. We have revised paragraph (l)(3) of this AD (paragraph (j)(3) of the proposed AD) to include the exception to account for the preventive modification.

Aviation Partners Boeing stated that accomplishing the supplemental type certificate (STC) ST01219SE does not affect the actions specified in the NPRM.

We agree with the commenter. We have redesignated paragraph (c) of the proposed AD as (c)(1) and added new paragraph (c)(2) to this AD to state that installation of STC ST01219SE (http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgstc.nsf/0/BE866B732F6CF31086257B9700692796?OpenDocument&Highlight=st01219se) does not affect the ability to accomplish the actions required by this final rule. Therefore, for airplanes on which STC ST01219SE is installed, a “change in product” AMOC approval request is not necessary to comply with the requirements of 14 CFR 39.17.

Boeing and Al Nippon Airways (ANA) asked that the optional modification specified in paragraph (i) of AD 2012-12-04 be restated in this AD. The commenters stated that Section 1.F., “Approval” of Boeing Alert Service Bulletin 737-53A1305, Revision 1, dated September 19, 2012, includes approval of the accomplishment of the inspections and modifications, in accordance with that service information for the modified area only, as a method of compliance with the modification specified in paragraph (i) of AD 2012-12-04. The commenters added that since the optional modification is not restated in the proposed AD, this approval is now eliminated.

We agree with the commenters for the reasons provided. We have restated the optional modification in new paragraph (j) of this AD (paragraph (i) of AD 2012-12-04), and redesignated subsequent paragraphs accordingly.

Boeing asked whether AMOCs would be considered for “preventive modifications,” in addition to repairs, in paragraph (l)(3) of the proposed AD. Boeing stated that adding this would address the AMOC requirement for the mandatory preventive modification.

We agree with the commenter's request because deviations to the mandated preventive modification are possible. Therefore, we have added “modification” (as well as “alteration”) to paragraph (n)(3) of this AD (paragraph (l)(3) of the proposed AD).

ASL Airlines France asked that we clarify the reference in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1293, Revision 3, dated January 23, 2015, specified in the “Condition” columns. The commenter stated that the flight-cycle compliance time referred to in these columns specifies “at the Revision 3 date of this service bulletin” instead of “as of the effective date of this AD.” The commenter asked that we include a new paragraph to clarify that “as of the effective date of this AD” should be used for compliance throughout the proposed AD.

We acknowledge the commenter's concern; however, paragraph (l)(1) of the proposed AD already addressed this difference; paragraph (j)(2) of this AD retains this provision. Therefore, no change to this AD is necessary in this regard.

Boeing and ASL Airlines France asked that we correct the paragraph reference in Note 1 to paragraph (i) of the proposed AD and in paragraph (j)(3) of the proposed AD. The commenters stated that these are typographical errors.

The information in Note 1 to paragraph (i) of the proposed AD has been included in paragraph (j) of this final rule (paragraph (i) of the proposed AD), therefore “Note 1” no longer exists. In light of this, the requested correction is not necessary in this regard. We have corrected the reference in paragraph (j)(3) of the proposed AD (paragraph (l)(3) of this AD) accordingly.

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

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

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

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

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

We reviewed Boeing Alert Service Bulletin 737-53A1293, Revision 3, dated January 23, 2015. The service information describes procedures for repetitive external detailed inspections and non-destructive inspections to detect cracks in the fuselage skin along the chem-mill steps at stringers S-1 and S-2R, between STA 400 and STA 460, and repair of any cracking. The service information also describes procedures for a modification of the chem-mill steps at the locations identified, including related investigative actions and corrective actions, and repetitive post-mod inspections. 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 186 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

We have received no definitive data that enables 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:

Background

The final and temporary regulations (TD 9766) that are the subject of this correction are under section 7701 of the Internal Revenue Code.

As published, the final and temporary regulations (TD 9766) contains an error that may prove to be misleading and is in need of clarification.

Accordingly, 26 CFR part 301 is corrected by making the following correcting amendment:

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

On January 28, 2016, the Nashville Paddle Company notified the Coast Guard that it will be conducting a rowing race from 9 a.m. to noon on July 30, 2016. The event will consist of at least 75 participants on various sized stand up paddle boards and kayaks on the Cumberland River. The Captain of the Port Ohio Valley (COTP) determined that additional safety measures are necessary to protect participants, spectators, and waterway users during this event. In response, on June 10, 2016, the Coast Guard published a notice of proposed rulemaking (NPRM) Special Local Regulation; Cumberland River, Mile 190.0 to 191.5; Nashville, TN (81 FR 37562).

There we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to this marine event. During the comment period that ended June 27, 2016 we received no comments.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1233. The Captain of the Port Ohio Valley (COTP) has determined that potential hazards associated with the marine event in this July 30, 2016, event will be a safety concern for the participants of the event. The purpose of this rule is to ensure safety of vessels and participants and the navigable waters in the special local regulation area before, during, and after the scheduled event.

As noted above, we received no comments on our NPRM published May 15, 2016. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM other than providing the final enforcement times and date.

This rule establishes a special local regulation for all waters of the Cumberland River beginning at mile marker 190.0 and ending at mile marker 191.5 from 9 a.m. until noon on July 30, 2016. The duration of the regulated area is intended to ensure the safety of vessels and participants and these navigable waters before, during, and after the scheduled 9 a.m. to noon marine event. No vessel or person will be permitted to enter the regulated area without obtaining permission from the COTP or a designated representative.

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

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

This regulatory action determination is based on the size, location, duration, and time-of-day of the special local regulation. This rule restricts transit on the Cumberland River from mile 190.0 to 191.5, for a short duration of 3 hours on one day; Broadcast Notice to Mariners and Local Notices to Mariners will also inform the community of this special local regulation so that they may plan accordingly for this short restriction on transit. Vessel traffic may request permission from the COTP Ohio Valley or a designated representative to enter the restricted area.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969(42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a special local regulated area lasting 3 hours that will prohibit entry within the regulated area. It is categorically excluded from further review under paragraph 34(h) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES.

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

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:

Throughout this document wherever “we,” “us,” or “our” is used, we mean the EPA.

On March 12, 2008 EPA revised the eight-hour ozone NAAQS from 0.08 part per million (ppm) to 0.075 ppm. (73 FR 16436, March 27, 2008). In 2012, EPA designated nonattainment areas for the 2008 ozone NAAQS (2008 ozone nonattainment areas) (77 FR 30088, May 21, 2012).1 The Baton Rouge area was designated as nonattainment areas for the 2008 ozone NAAQS. The BRNA consists of five parishes: Ascension, East Baton Rouge, Iberville, Livingston, and West Baton Rouge.

CAA sections 172(c)(3) and 182(a)(1), require states to develop and submit, as a SIP revision, an EI for all areas designated as nonattainment for the ozone NAAQS. An EI is an estimation of actual emissions of air pollutants in an area. Ground-level ozone, O3, is a gas that is formed by the reaction of volatile organic compounds (VOCs) and oxides of nitrogen (NOX) in the atmosphere in the presence of sunlight. (VOCs and NOX are referred to as ozone precursors). Therefore, an EI for ozone covers the emissions of VOC and NOX. These precursor emissions are emitted by many types of pollution sources, including power plants and industrial emissions sources, on-road and off-road motor vehicles and engines, smaller stationary sources, collectively referred to as nonpoint sources, and biogenic sources.2 The EI provides emissions data for a variety of air quality planning tasks including establishing baseline emission levels, calculating federally required emission reduction targets needed to attain the NAAQS, determining emission inputs for ozone air quality simulation models, and tracking emissions over time to determine progress toward achieving air quality and emission reduction goals.

As stated above, the CAA requires the states to submit EIs for areas designated as nonattainment for ozone. For the 2008 ozone NAAQS, EPA has recommended that states use 2011 as a base year for the emission estimates (78 FR 34178, 34190, June 6, 2013). However, EPA also allows states to submit base year emissions for other years during a recent ozone standard violation period. States are required to submit estimates of VOC and NOX emissions for four general classes of anthropogenic sources: stationary point sources; nonpoint sources; on-road mobile sources; and off-road mobile sources in their EIs.

In a letter dated May 2, 2016, the LDEQ submitted the 2011 base year inventory to the EPA as part of the BRNA designation and maintenance plan. The EPA reviewed the 2011 base year inventory and determined that it was developed in accordance with EPA guidelines. Table 1 summarizes the 2011 VOC and NOX base year emission for the BRNA area for a typical summer day (reflective of the summer period, when the highest ozone concentrations are expected in these ozone nonattainment areas).

The primary CAA requirements pertaining to the SIP revision submitted by LDEQ are found in CAA sections 110(l), 172(c)(3) and 182(a)(1). CAA section 110(l) requires that a SIP revision submitted to EPA be adopted by the State after reasonable notice and public hearing. Section 110(l) also prevents us from approving a SIP revision if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of the CAA. CAA sections 172(c)(3) and 182(a) requires a SIP revision that is a comprehensive, accurate, current inventory of actual emissions from all sources.

EPA has reviewed the revision for the consistency with the requirements of EPA regulations. A summary of EPA's analysis is provided below. For a full discussion of our evaluation, please see our TSD.

CAA sections 172 (c)(3) and 182(a)(1) require an inventory of actual emissions from all sources of relevant pollutants in the nonattainment areas. EPA specified in the 2008 ozone standard SIP requirements rule that the states should use 2011 as a base year for EI SIPs to address the EI requirements. LDEQ has developed a 2011 base year emissions inventory for the Baton Rouge nonattainment areas. The 2011 base year emissions includes all point, nonpoint, non-road mobile, and on-road mobile source emissions in BRNA. LDEQ utilized data from the US EPA 2011 National Emissions Inventory (NEI), Version 2 as the baseline emissions inventory to identify the level of emissions in the area during the period of monitored attainment and satisfy the requirement of section 182(a)(1).

EPA reviewed the emission inventory and determined that it is approvable because it was developed in accordance with EPA guidance on emission inventory preparation. The inventory is a comprehensive, accurate, and current inventory of actual emissions for all relevant sources in accordance with CAA sections 172(c)(3) and 182(a)(1). Additionally we found that (1) LDEQ adopted after reasonable notice and public hearing and (2) approval would not interfere with any applicable requirement concerning attainment and reasonable further progress or any other applicable requirement of the CAA. A technical support document (TSD) was prepared which details our evaluation. Our TSD may be accessed online at www.regulations.gov, Docket No. EPA-R06-OAR-2016-0278.

We are approving a Louisiana SIP revision submitted to address the emissions inventory requirement for the Baton Rouge 2008 ozone NAAQS nonattainment area. The inventory we are proposing to approve is listed in table 1 above.

We are publishing this rule without prior proposal because we view this as a non-controversial amendment and anticipate no adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the SIP revision if relevant adverse comments are received. This rule will be effective on September 6, 2016 without further notice unless we receive relevant adverse comment by August 4, 2016. If we receive relevant adverse comments, we will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. We will address all public comments in a subsequent final rule based on the proposed rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so now. Please note that if we receive relevant adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of an adverse comment.

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 6, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

40 CFR part 52 is amended as follows:

I. General Information A. Applicability

This document does not impose requirements on any entity.

EPA has established a docket for this action under Docket ID No. [EPA-HQ-OW-2015-0668; FRL-9948-62-OW]. Publicly available docket materials are available either electronically through www.regulations.gov or in hard copy at the EPA Docket Center, (EPA/DC) EPA West, Room 3334, 1301 Constitution Ave. NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room and the Docket Center is (202) 566-1744.

You may access this Federal Register document electronically from the Government Printing Office under the “Federal Register” listings at FDSys (http://www.thefederalregister.org/fdsys/browse/collection.action?collectionCode=FR).

In accordance with 40 CFR part 23, this decision shall be considered issued for purposes of judicial review at 1 p.m. Eastern time on July 11, 2016. Under Section 509(b)(1) of the CWA, judicial review of this decision can be had only by filing a petition for review in the U.S. Court of Appeals within 120 days after the decision is considered issued for purposes of judicial review.

EPA has determined not to designate stormwater discharges from forest roads for regulation under Section 402(p)(6) of the Clean Water Act (CWA) at this time. EPA's decision is based on several interrelated factors. First, state, federal, regional, tribal government, and private sector programs already exist nationwide to address water quality problems caused by discharges from forest roads. Many of these programs have been improved and updated in recent years. Program implementation rates are generally high and have been shown to be effective in protecting water quality when properly implemented. These programs employ a variety of approaches, based in part on variations in regional topography and climate. While EPA recognizes that existing programs vary in their degree of rigor, the Agency has concluded that efforts to help strengthen existing programs would be more effective in further addressing forest road discharges than superimposing an additional federal regulatory layer over them.

Some commenters have asserted that federal regulatory requirements could, in theory, promote national consistency and improvements in less effective programs. In practice, however, federal forest roads regulation presents a number of challenges that make achievement of that result unlikely. Wide variations in topography, climate, ownership, management, and use across the nation's network of forest roads make the establishment of any nationwide regulatory program a complex and difficult endeavor. Mechanisms for implementation and enforcement of any federal regulatory requirements are limited, as recent amendments to CWA Section 402(l) preclude both the use of National Pollutant Discharge Elimination System (NPDES) permits to regulate most discharges from forest roads and citizen suit enforcement of any Section 402(p)(6) requirements. Some commenters discussed the failings of existing best management practices (BMP) programs, including insufficient compliance rates and compliance monitoring, but a federal EPA-administered program would not necessarily be able to address these challenges more effectively than entities with regional expertise overseeing existing forestry management practice programs, especially without the accountability mechanisms afforded by a permitting program or third-party enforcement.

For these reasons, elaborated upon below, EPA is exercising the “broad discretion the CWA gives the EPA in the realm of stormwater runoff,” in deciding not to regulate stormwater discharges from forest roads. See Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct 1326, 1338 (2013) (affirming EPA's determination not to regulate stormwater discharges from logging roads in its industrial stormwater rule). Instead, EPA intends to work in consultation with state and local officials, as well as other federal agencies and interested stakeholders, to help strengthen their existing programs and improve awareness and implementation of forestry best management practices. In reaching this conclusion, the Agency is cognizant that the CWA reserves for states “the primary responsibilities and rights . . . to prevent, reduce, and eliminate pollution [and] to plan the development and use (including restoration, preservation, and enhancement) of land and water resources . . .” 33. U.S.C. 1251(b).

The objective of the CWA is to restore and maintain the chemical, physical, and biological integrity of the nation's waters. 33 U.S.C. 1251(a). To that end, the CWA provides that the discharge of any pollutant by any person shall be unlawful, except in compliance with other provisions of the statute. The CWA provides for a permit program, in general, for the discharge of a pollutant from a “point source,” which is defined in Section 502 of the CWA as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.” 33 U.S.C. 1362(14). In 1987 Congress added Section 402(p) to the CWA, which required NPDES permits for certain specified stormwater discharges and provided EPA with discretion to determine whether and how discharges from other stormwater sources should be addressed “to protect water quality.” See Northwest Environmental Advocates v. EPA, 640 F.3d 1063, 1083 (9th Cir. 2011) (“[i]t is within the discretion of EPA to promulgate Phase II regulations requiring, or not requiring, permits for such discharges”).

For the initial phase of stormwater regulation, Section 402(p)(1) created a temporary moratorium on NPDES permits for point sources except for those listed in Section 402(p)(2). Section 402(p)(2) includes discharges already required to have a permit; discharges from municipal separate storm sewer systems serving a population of 100,000 or more; and stormwater discharges “associated with industrial activity.” Congress did not define discharges associated with industrial activity, allowing EPA to interpret the term. For other stormwater discharges, Section 402(p)(5) directs EPA to conduct studies, in consultation with the states, for “identifying those stormwater discharges or classes of stormwater discharges for which permits are not required”; “determining to the maximum extent practicable, the nature and extent of pollutants in such discharges”; and “establishing procedures and methods to control stormwater discharges to the extent necessary to mitigate impacts on water quality.”

Section 402(p)(6) authorizes the Administrator to issue regulations, in consultation with state and local officials, based on the studies prescribed by Section 402(p)(5). It provides EPA discretion in selecting which discharge sources to regulate and how to regulate them; it does not require the use of NPDES permits. Specifically, the section states that the regulations “shall establish priorities, establish requirements for state stormwater management programs, and establish expeditious deadlines” and may include “performance standards, guidelines, guidance, and management practices and treatment requirements, as appropriate.” 33 U.S.C. 1342(p)(6). This flexibility is unique to stormwater discharges regulated under Section 402(p)(6) and differs from the requirement for NPDES permits for stormwater discharges listed in Section 402(p)(2) of the Act.

In 1990, EPA promulgated the Phase I stormwater regulations (55 FR 47990, November 16, 1990) (“Phase I Rule”), following the 1987 CWA amendments which directed the Agency to develop regulations requiring permits for large and medium municipal separate storm sewer systems and stormwater “discharges associated with industrial activity.” In March 1995, EPA submitted to Congress a report on the results of the Section 402(p)(5) study that evaluated the nature of stormwater discharges from municipal and industrial facilities not already regulated under the Phase I regulations (EPA, 1995). On December 8, 1999, EPA promulgated the Phase II stormwater regulations to address stormwater discharges from small municipal separate storm sewer systems and construction sites that disturb one to five acres. 64 FR 68722. Under CWA Sections 402(p)(2)(E) and 402(p)(6), EPA retains the discretionary authority to designate additional stormwater discharges for regulation.

The Phase II stormwater regulations were challenged in Environmental Defense Center v. US EPA, 344 F.3d 832 (9th Cir. 2003) (EDC v. EPA). In that case, petitioners contended that EPA arbitrarily failed to regulate discharges from forest roads under the Phase II rule. The court held that EPA failed to consider petitioners' comments and remanded the issue to EPA “so that it may consider in an appropriate proceeding Petitioner's contention that Section 402(p)(6) requires the EPA to regulate forest roads. The EPA may then either accept Petitioners' arguments in whole or in part, or reject them on the basis of valid reasons that are adequately set forth to permit judicial review.” Id. at 863.

In the years following the decision in EDC v. EPA, EPA undertook research to improve the Agency's knowledge of the water quality impacts of forest road stormwater discharges and the programs that exist to reduce those impacts. During that period, the Northwest Environmental Defense Center initiated litigation concerning logging road stormwater discharges. In 2011, the U.S. Court of Appeals for the Ninth Circuit issued a decision in Northwest Environmental Defense Center v. Brown, 640 F.3d 1063 (9th Cir. 2011) (“NEDC”), a citizen suit alleging violations of the CWA for unpermitted discharges of stormwater from ditches alongside two logging roads in state forests. The court held that because the stormwater runoff from the two roads in question is collected by a system of ditches, culverts, and channels and then discharged into waters of the U.S., there was a point source discharge of stormwater associated with industrial activity for which an NPDES permit is required.

On May 23, 2012, EPA published a Notice in the Federal Register summarizing known water quality impacts related to forest roads and discussing existing state, tribal, and voluntary programs designed to address those impacts. (77 FR 30473). The Notice expressed EPA's intent to specify that only stormwater discharges associated with rock crushing, gravel washing, log sorting, and log storage are discharges associated with silvicultural activity that are subject to permitting under the stormwater regulations pertaining to industrial activity. The Notice also discussed the Agency's consideration of non-permitting approaches to address other stormwater discharges from forest roads. On December 7, 2012, EPA promulgated a rule (77 FR 72970) clarifying that discharges of stormwater from silviculture activities other than rock crushing, gravel washing, log sorting, and log storage do not require an NPDES permit. On March 20, 2013, the Supreme Court reversed the Ninth Circuit's ruling in NEDC, holding that discharges of stormwater that ran off logging roads into ditches, culverts, and channels did not require an NPDES permit as stormwater from industrial activity. See Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct 1326 (2013).

In January 2014, Congress amended CWA Section 402(l) to effectively prohibit the requirement of NPDES permits for the discharge of runoff “resulting from the conduct of the following silviculture activities conducted in accordance with standard industry practice: nursery operations, site preparation, reforestation and subsequent cultural treatment, thinning, prescribed burning, pest and fire control, harvesting operations, surface drainage, or road construction and maintenance.” 33 U.S.C. 1342(l). In addition, the amendment prohibits third-party lawsuits (“citizen suits”) authorized by CWA Section 505(a) for any requirements established under Section 402(p)(6) for the silviculture activities listed above.

In December 2014, EDC and the Natural Resources Defense Council filed a petition with the Ninth Circuit to compel EPA to respond, within six months, to the question remanded in the 2003 EDC v. EPA decision of whether Section 402(p)(6) requires federal regulation of stormwater discharges from forest roads. Following execution of a settlement agreement filed with the court on August 26, 2015, the court entered an order establishing a schedule requiring EPA to issue a final determination by May 26, 2016. The parties subsequently extended the deadline by joint stipulation to June 27, 2016.

Forests cover about one-third of the continental U.S. (approximately 816 million acres). Over half are privately owned (58% or approximately 475 million acres) (USFS, 2016). Of private forest land, 63% is owned by families and individuals and is commonly referred to as “family forests.” Most of the family forest owners (around 62%) own fewer than 10 acres of forest land. Owners of the remaining private forest land include corporations, Real Estate Investment Trusts (REITs), conservation organizations, clubs, and Native American tribes (USFS, 2016). Over 300 Native American reservations are significantly forested, and Native American tribal lands include 18.6 million acres of forest land, including 1.5 million acres of productive timberland (Bureau of Indian Affairs, 2009). Private forest land owners invest considerable resources in forest road construction and maintenance, as they are critical assets that enhance property values, maintain economic viability, and facilitate sustainable forestry.

Forty-two percent of forest land, or approximately 341 million acres, is publicly-owned. The federal government administers an estimated 74% of the public forest land. State forestry, park, and wildlife agencies account for most of the 22% of state-owned public forest land. The remaining 4% of public forest land is owned by local governments, such as counties and towns (USFS, 2016). Within the U.S., the distribution of public versus private forests differs greatly among the various regions of the country. For example, forest ownership in the Northwest is dominated by public ownership, primarily by the U.S. Forest Service (USFS) and the Bureau of Land Management (BLM). Private ownership is more prevalent in the Southeast and Northeast (Id.).

Forests are connected by a vast network of forest roads built over the course of more than a century. Roads exist in forests for all land ownership categories, enabling activities as varied as timber operations, recreation, fire protection and general transportation. Originally some were built to allow mining or agriculture. The network of forest roads includes both active and inactive roads that vary in age and condition, and which often serve multiple purposes by multiple users at the same time. Because of the nature of timber growing, timber roads are often used just once every fifteen or twenty years. Endicott (2008) noted that:

A single road may be subject to different owners and managers and used for different activities at different points. Often the owner of the road is not the owner of the forest land over which the road travels. For example, a BLM-owned road may pass through private property or a timber company-owned road may pass through a state-owned public forest. The purpose of a road may also change at different points; for example, most of a road may be used for recreation but a small part of it may service a timber operation. Legacy roads pose particular concerns for water quality. Built prior to the adoption of modern BMPs, they may be poorly sited or designed and frequently no owner or operator assumes responsibility for those roads.

As previously discussed in 80 FR 69655-69656 (November 10, 2015) and 77 FR 30476 (May 23, 2012), the Agency's research indicates that improperly designed, constructed, maintained, or decommissioned forest roads can impact water quality. These impacts are variable and may include increased sediment load and changes in stream network hydrology, which can cause physical, biological, and ecological impacts to water quality and aquatic organisms.

Erosion from many forest roads does not affect water quality. First, roads that are not hydrologically connected to a stream do not deliver sediment to water bodies. For example, Dube et al. (2010), found that in an inventory of forest roads in 60 random four-square-mile sections of forests in the Washington State, only 11% were connected to streams; Skaugset and Allen (1998) surveyed 287 miles of forest roads in 5 regions of Oregon and determined that 25% of forest roads drained directly to streams while another 6% were rated “possible” for sediment delivery. Second, a variety of factors play a role in how water quality is impacted by forest roads, including road design, road surfaces, construction, maintenance, rate of use, topography, soil characteristics, precipitation patterns, and proximity of roads to surface water. The source of water quality impacts tends to be localized.

Available data suggest that the number of surface waters impacted by silvicultural operations, including forest roads, is a small percentage of Section 303(d) listed impaired waters. EPA's analysis of the data shows that this trend has been consistent over time, indicating that water quality impacts appear to have persisted over time, but comprise only a small percentage of all sources of impairment. Specifically, results of nationwide waterbody assessments from the EPA's Assessment and Total Maximum Daily Loads (TMDL) Tracking and Implementation System (ATTAINS),1 which contains the most currently available data reported by states to the EPA under Sections 305(b) and 303(d) of the CWA, found silviculture, which includes a broad spectrum of forestry activities including regulated activities,2 contributed to impairment of 40,637 miles of rivers and streams (7% of the total of 614,153 miles impaired) and 159,920 acres of lakes, reservoirs and ponds (1% of the total of 13,009,273 acres of impaired) (ATTAINS 2016). “Forest roads (road construction and use)” or “logging roads” are listed as the “probable source” of impairment for 31,076 miles of rivers and streams (5% of total impaired) and 7,627 acres of lakes, reservoirs and ponds (less than 1% of total impaired).

The extent of the impacts of silvicultural activities on water quality varies by region. Impairment data from states that report probable sources of impairments suggest that forest roads constitute a relatively low percentage of impairments. Examples of states where silviculture (a broader category that includes forest roads) is identified as a probable source of impairment and that document a percentage of the total river and stream miles impaired by `forest roads' or `logging roads' include: Idaho (0.62%; forest roads); Kentucky (0.04%; forest roads); Montana (5.71%); New Mexico (1.97%); and Pennsylvania (0.01%) (ATTAINS 2016). Road-related pollutant loading and impairments, however, may represent a higher percentage of impairments within specific regions. For example, within federal lands in the interior Columbia Basin, roads were identified as the largest source of sediment from any land management activity.3

EPA recognizes that the national water quality data discussed above have certain limitations. One limitation is that some states, when compiling their Section 305(b) reports, may not report the probable source of an impairment or may list probable impairment sources as unspecified, unknown, or in some other category, which may lead to underreporting of the source of the impairment. Additionally, some states may not assess all of their waters or may use different methodologies to collect or report water quality data, limiting the ability of drawing national-scale conclusions.

ATTAINS data indicating the effect of discharges from forest roads on water quality impairments may therefore not be fully representative due to reporting differences among states. For example, of the 40,637 miles of rivers and streams that ATTAINS indicates are impaired by silviculture, the database shows that California accounts for 34,443, or 85%, nationally (ATTAINS, 2016). Some regions in California use a particular approach toward classifying impairments that increases the reported percentage of impaired miles. Unlike other states, if a given reach of river is identified as impaired for a particular pollutant, some California regions categorize all of the river miles in the entire watershed as impaired.

It is also important to recognize that EPA's data collection methods have changed over time. While ATTAINS compiles state-level data, it relies on the states for this information. The National Water Quality Initiative (NWQI), conducted by EPA, provides very specific information on impairments and sources, but EPA no longer collects these data. EPA currently uses probabilistic approaches (such as the Wadeable Streams Assessment and the National Rivers and Streams Assessment) to collect national-scale data on water quality. While these assessment approaches are sound, they do not reveal specific impairments and causes and therefore are less informative for purposes of this analysis.

Estimating sedimentation specifically related to forest road discharges is also difficult as a practical matter. Unlike industrial and wastewater facilities, which typically have water quality monitoring to provide background data for assessing compliance with water quality standards, there is little to no regular monitoring of water quality in waters affected by forest road discharges. Endicott (2008) noted that “[e]ven a well-designed erosion experiment frequently results in variations from the mean of up to 50%.” Investigators may also be unable to differentiate among sediment generated from forest roads and sediment generated from other silvicultural activities, background erosion rates, or other sources. Endicott (2008) further explains that: “Numerous studies have demonstrated that the biotic and chemical “noise” in larger streams renders the water quality effects of forestry activities using BMPs undetectable.” Finally, Endicott (2008) recognizes that quantitative data can be difficult to obtain because “impairments can be difficult to detect and/or measure” and “[e]rosion only usually occurs during wet weather.”

The U.S. Forest Service defines Best Management Practices (BMPs) as the following:

In the context of forest roads, BMPs focus on preventing and mitigating water quality impacts that may stem from the construction, maintenance and use of forest roads. Forest road BMPs are on the ground activities and structures that, in most cases, aim to prevent discharges of sediment from roads to streams. BMPs may also target other suspended solids, spills and residues, changes in water temperature, and alterations to flow regimes. In some cases they are designed to protect stream geomorphology and habitat for certain species.

BMPs for forest roads generally fall into three categories: BMPs addressing road planning and design, road construction and reconstruction, and road management (e.g., Endicott 2008). Over the past several decades BMPs have been developed, evaluated, and improved based on ongoing research and technical innovation. BMPs are now widely implemented as standard elements of most private, state, and federal forestry programs (Ice et al., 2010). State-specific BMP programs and guidelines are available in most states (NCASI, 2009). Although the primary purpose of BMPs is to reduce environmental impacts, they must also be feasible and practical (Ice, 2004).

BMPs are generally selected based on site-specific needs and conditions, which vary tremendously. Proximity of the road to the stream, size of the road, local geology and climate all influence the occurrence and magnitude of erosion and consequently the types of BMPs that will be most effective. For example, use of gravel to cover a road surface can be a highly effective erosion control BMP in steep terrain. In flat terrain, that same BMP would be less effective and much more expensive than a properly maintained continuous roadside berm (Appelboom et al., 2002).

While BMP design is site-specific, many documents describe the most common BMPs (e.g., NCASI, 2001; EPA, 2005; NCASI, 2009; USFS, 2012; NCASI, 2012). This document does not provide a detailed discussion of the BMPs themselves; a number of comprehensive sources regarding different types of BMPs are available and included in the record for this decision (e.g., NCASI, 2009; Endicott, 2008; North Carolina Forestry BMP Manual; Montana Forestry BMP Manual). Most BMPs are based on relatively few guiding principles (Megahan and King, 2004; Olszewski and Jackson, 2006). These include:

• Use existing roads when practicable;

• Inventory road and stream conditions;

• Identify and avoid high-erosion hazard areas;

• Minimize the total land area disturbed;

• Minimize road crossings and other incursions into waterbodies;

• Engineer stable road surfaces, drainage features and stream crossings to reduce erosion;

• Separate bare ground from surface waters and minimize delivery of road-derived sediments to streams;

• Provide a forested buffer around streams;

• Design and install stream crossings to allow passage of fish, other aquatic biota, and large wood;

• Anticipate and mitigate erosion from precipitation events, including especially large ones;

• Regularly inspect all BMPs and erosion-prone areas, including during and/or immediately following precipitation and snowmelt events that may generate runoff; and

• Maintain forest roads and all BMPs.

EPA notes that BMPs currently play and historically have played a significant role in wet weather 4 and non-point source control programs. The scientific literature increasingly demonstrates the effectiveness of BMPs in preventing, minimizing, and mitigating discharges affecting water quality and aquatic habitats (Ice, 2004; Anderson and Lockaby, 2011; NCASI, 2012; Cristan et al., 2016; Endicott (2008)). Although existing research has significantly improved the effectiveness of forest road BMPs, reducing water quality impacts from road construction and other practices, many discharges still occur (Anderson and Lockaby, 2011). Further research would help to optimize operation and maintenance and provide guidelines for adapting BMP implementation to site-specific needs.

Several commenters cited a report by Cristan et al. (2016) —“Effectiveness of Forestry Best Management Practices in the United States: Literature Review”—which summarized 81 BMP effectiveness studies: 30 studies of southern states, 20 studies of northern states, and 31 studies of western states.

The review concluded generally that:

• Forestry BMPs minimize water quality effects of forest operations when implemented as recommended by state forestry and water quality agencies.

• Forest roads, skid trails, and stream crossings warrant considerable attention because they have the greatest potential for erosion and sediment delivery.

• Many studies across the U.S. have shown BMPs to be effective and reduce sediment delivery to streams.

Several of the studies in the review assessed BMP performance and effectiveness in tandem and individually, including:

• Appelboom et al. (2002) sampled runoff from seven road practices in North Carolina and found that roads with continuous berm treatment had a 99% reduction in sediment loss compared to roads that did not have a continuous berm.

• Aust et al. (2011) evaluated four types of operational forest stream crossings at 23 crossings and approaches for total dissolved solids, pH, conductivity, temperature, and sediment concentration in the Piedmont region of Virginia during initial, installation, harvest, and closure stages. The authors found that bridge crossings had the least impact on water quality, that the installation and harvest phases had the greatest impact on water quality, and that BMPs should be followed during all phases.

• Wisconsin DNR (2006) published a BMP manual in 1995 and assessed the first ten years of their water quality program. The average BMP compliance rate was 83% and BMP effectiveness was 99% when the appropriate BMPs were applied and maintained. When BMPs were not applied, water quality was affected 71% of the time.

• Pannill et al. (2000) evaluated Maryland BMPs in a paired watershed study and, based on TSS, stormflow, stream temperature, and macroinvertebrate data, found no significant water quality differences between pre-harvest and post-harvest, i.e., proper BMPs will help protect water quality, biology, and habitat.

• Vowel (2001) conducted stream bioassessments using a stream condition index (SCI) for sites before and after silvicultural treatments incorporating Florida BMPs and found no significant differences in the SCI. The study concluded that Florida BMPs were effective in protecting water quality.

Cristan et al. (2016) also indicated that, in certain conditions, water quality effects can occur even when BMPs are used.

• Maryland DNR (2009) evaluated state BMPs from 2004-2005 on 75 forest harvested sites using a Maryland-specific BMP implementation checklist. Maryland found that 81% of those sites were in compliance with state BMPs standards. Maryland also found that BMPs were 77% effective in protecting water quality; however, they found that 19% of the sites evaluated delivered measurable sediment to waterways.

• Rice (1999) estimated the mean erosion rate from older logging roads (installed in the 1950s, maintained to standards of the 1980s) in the Redwood Creek watershed (northern California) to be 177 m3 km−1 from 1980 to 1997, mainly from the road cut banks, but noted that changes in forest practice rules (especially proper placement of culverts and sizing of culverts) reduced erosion on logging roads.

• Bilby et al. (1989) assessed road surface sediment production from five roads in two southwestern Washington watersheds including two heavily trafficked roads built in the 1950s and three haul roads built between 1968 and 1974 and found that sediment entered first and second order streams 34% of the time.

• Nolan et al. (2015) examined the effectiveness of BMPs at a number of stream crossings in Virginia. The study conducted an audit of BMP implementation rates, which it found can often function as surrogates for BMP effectiveness. In general, the study found that the majority of stream crossings were performing properly, but that performance varied. The study also cited Edwards and Williard (2010), which “found only three studies that provided BMP efficiencies with regard to sediment loading reductions and reported BMP efficiencies ranging from 53%-94%.”

• The USFS evaluated its Pacific Southwest Region BMP program from 2008-2010, conducting 2,237 BMP inspections, and found that BMP implementation was 91% and effectiveness was 80%, with stream water quality impacts at 12% of the sites (USFS, 2013). BMPs for timber harvesting, fuels treatments, and vegetation management were effective; BMPs for roads, range management, recreation, and mining were not as effective, although effectiveness could be increased by imposing erosion control plans and wet weather standards.

EPA also considered other recently-published literature. Below are some of the major findings:

• The literature review Assessing the Effectiveness of Contemporary Forestry Best Management Practices (BMPs): Focus on Roads (NCASI, 2012) reviewed hundreds of studies and found that “implementing a suite of contemporary BMPs reduces sediment loads to streams by 80% or more relative to uncontrolled forestry operations.” The document further concluded that “Specific BMPs for roads have been tested in controlled studies and proven effective by road inventories conducted by forestry agencies in several states. Those inventories show that road BMPs are being implemented at high rates and are effective in reducing risks to water quality; road drainage structures are being disconnected from streams; poor road/stream crossings are being identified and corrected; and landslides from forest roads are being reduced.”

• The USFS (2012) National Best Management Practices for Water Quality Management on National Forest System Lands (Volume 1: National Core BMP Technical Guide), provides highly detailed guidance on silvicultural BMPs, including those for forest roads. BMP effectiveness ratings were 93% (Pacific Southwest Region) and 98% (Montana), with North Carolina effectiveness rates showing an increase from 73% to 93% between 1992 and 2010. Guidance to standardize BMP monitoring protocols is under development.

• Ice et al. (2010) estimated national BMP implementation rates at 89%.

• Sugden et al. (2012) found that BMP implementation rates in Montana have increased over time, corresponding with a significant drop in the number of observed water quality impacts.

Below are findings from national-scale studies:

• Cristan et al. (2016) concluded that BMPs implementation rates and quality are critical to BMP effectiveness for reduction of erosion and sediment yield. Important BMP practices for forest roads include proper drainage structures, surfacing, erosion control of cut and fill slopes, traffic control, and closure. Sediment control structures applied to stream crossing approaches can significantly reduce runoff and sediment delivery.

• Ice et al. (2010) concluded that the combination of effective BMPs and a high rate of BMP implementation helps protect the water quality and beneficial uses of streams, lakes, and wetlands in forested environments.

A broad array of BMP-based programs—including state and federal programs and private third-party certification programs—has been established to address forest roads in every state with significant forestry operations in the country. The following sections outline the nation's current landscape of state, federal, and third-party BMP based programs designed to control discharges from forest roads, and discuss the role of existing EPA tools in addressing stormwater discharges from forest roads. As highlighted below, available information indicates that these programs are tailored to address regional and local differences, that implementation rates are generally high, and that meaningful improvements have been and continue to be made in these programs over time. EPA did not obtain significant data about tribal programs addressing discharges from forest roads, so does not report on tribal programs in this section. EPA will seek to learn more about efforts to address stormwater discharges from forest roads on tribal lands as part of its continuing efforts to gather best practices data going forward.

Data EPA obtained during the comment period indicates that all states with significant forestry operations have developed BMP manuals and most states have established forest management programs tailored to state-specific conditions (e.g., topography, climate, and industry activity) that address runoff from forest roads. The data also indicates that BMPs are being implemented at increasing rates across the nation. A team of researchers from Virginia Polytechnic Institute and State University (Virginia Tech), in consultation with the National Association of State Foresters (NASF), surveyed all 50 states in 2013 to identify silvicultural activities addressed by BMPs, characterize the approaches to BMP implementation adopted by each state, determine the extent to which states are implementing BMP effectiveness monitoring, and summarize BMP implementation rates (NASF, 2015). The survey showed that most states have established forestry BMPs designed to protect water quality. According to the survey, these programs are a mix of regulatory (11 states), quasi-regulatory (19 states), and non-regulatory (20 states) programs. Those states with regulatory programs generally have some form of forest practices law or silvicultural BMP legislation. In states with quasi-regulatory programs, state law specifies desired outcomes but does not require specific BMPs to achieve that outcome.5

Existing state programs vary because they are designed to address state and site-specific factors. Prior assessments of state forestry BMP programs have found similar, generally consistent information.6 7 The following number of states have established forest road specific BMPs (Table 1).

One of the primary mechanisms for addressing water quality impacts of forest roads is individual states' forest practices polices, which generally establish standards for the design, operation and maintenance of forest roads applicable to conditions in their state. State forest road programs vary to some degree in their structure, requirements, and administration. Differences are based on legal, and socioeconomic factors as well as variations in climate, soils, topography, and aquatic biota. State programs generally establish both guiding principles and specific management practices that must be applied and adapted to a broad range of settings and conditions. Site-specific flexibility is important because no single set of requirements will be effective across the country. As EPA stated in its November 10, 2015 notice, “[t]he diversity of the forest road networks, the different classes of roads, the different local physical conditions, and the broad range of road conditions and uses indicate the importance of site specific BMP selection and implementation to protect water quality” (80 FR 69656). For example, commenters correctly pointed out that Florida's forest road BMPs need not recommend or discuss full-bench road construction and end hauling techniques, as Oregon's rules do, because Florida does not have landslide-prone terrain, while Oregon has steep terrain with the potential for landslides, where such construction and end hauling techniques would be appropriate (EPA-HQ-OW-2015-0668-0089).

Data from the 2013 NASF survey indicated that both forestry and forest road BMPs are implemented broadly. BMP implementation surveys in 32 states (i.e., those with significant forest management activity) between 2005 and 2013 showed an average forestry BMP implementation rate of 91% (NASF, 2015). Nationally, the survey suggests that implementation rates for forest road BMPs averaged 91.5% and stream crossing BMPs averaged 86.7% (NASF, 2015). The 2012 Southern Region Report published by the Southern Group of State Foresters (SGSF) found forest road BMP implementation rates for 11 states 8 range from 78-99%, with an average of 88%. In the SGSF report, stream crossing BMP implementation rates ranged from 72-98% and averaged 89% (SGSF BMP Report, 2012).

The NASF survey also indicated that forest road BMP implementation rates do not vary significantly regardless of whether the state program is regulatory, quasi-regulatory, or non-regulatory. The NASF survey indicated that implementation of forest roads BMPs in 8 regulatory reporting states averages 93.9%, while the implementation rates in the 11 quasi-regulatory reporting states and 13 non-regulatory reporting states averages 90.6% and 90.5%, respectively (NASF, 2015).

Plus, BMP implementation rates have improved and continue to improve over time. For example, from 2008—2012, the implementation rates for all forestry BMPs (including forest road and stream crossing BMPs) trended upward in the SGSF report. This included forest road BMP implementation rates and stream crossings BMP implementation rates, which increased from 87 to 90%, and from 85 to 89%, respectively (SGSF BMP Report, 2012).

In addition to state forest road BMP programs, several efforts have emerged over the past 10 years to improve monitoring of BMP programs. Regional groups have undertaken efforts to promote consistent and comparable forestry BMP program monitoring data. The SGSF and the Northeastern Area Association of State Foresters (NAASF) have developed regional BMP monitoring protocols that states in those regions are using.

SGSF developed Silviculture Best Management Practices Implementation Monitoring, A Framework for State Forestry Agencies (2007) to improve and maximize the integrity of BMP implementation monitoring in southern states (SGSF Regional BMP Framework Protocol, 2007). The framework, which is implemented by 13 southern states, Puerto Rico, and the U.S. Virgin Islands, is designed to provide guidance for monitoring forestry BMP implementation that results in data that are statistically sound, objective, and promote analytical consistency among states. The framework addresses monitoring frequency, site selection, practices to be evaluated, the basis for practice evaluation and reporting, scoring methodology, risk assessment, and follow-up actions.

Similar to the SGSF BMP monitoring framework, the USFS Northeastern Area State and Private Forestry and the Northeastern Area Association of State Foresters—Water Resources Committee have developed the Forestry BMP Protocol Project. The BMP Protocol is a standard method for monitoring the use and effectiveness of BMPs commonly used in timber harvesting. The BMP Protocol, which is available to 20 states, serves three functions: (1) Data collection, (2) data analysis, and (3) report generation. It collects data using a branched question set designed to address those areas of the timber harvest with the greatest potential to impact water resources (including haul roads and water crossings). The protocol was developed to document the use and effectiveness of BMPs in protecting water resources during forest harvesting operations; document the degree of compliance with the CWA, as well as the Coastal Zone Management Act and various state laws and regulations; assess water resource protection based on the effectiveness of a collective set of BMPs; increase credibility through the measurement of results; respond to public concerns regarding the potential effects of timber harvesting based on measured evidence; and identify opportunities for improvement in water resource protection by identifying causes of BMP failure. Both a Desk Reference and Field Guide have been developed for the monitoring protocol (BMP Manual Desk Reference, 2007; BMP Field Guide, 2007).

Other factors are also facilitating the increasing rate of BMP implementation. For example, third-party certification programs, as discussed in detail in section VI.C of this document, all require BMP implementation and third-party audits to verify that timber companies conform to state standards. Forest certification programs have made important contributions to improved BMP implementation through logger training, landowner outreach, and water quality requirements. Other examples are the logger training and certification programs established by states and third-party programs, such as the SFI Logger Training and Education (2015) program, to ensure loggers are educated about the use and maintenance of appropriate forest road BMPs. Training is particularly important given the site-specific customization BMPs require. The best way to ensure optimal BMP selection and installation is through localized knowledge of climate, soils, forestry operations, and other factors, in combination with state-specific BMPs. Some commenters noted that the Forest Resources Association reports having trained more than 150,000 logging professionals since the inception of the forest certification program (EPA-HQ-OW-2015-0668-0089). For fiscal year 2015, West Virginia noted that 1,454 loggers received certification to supervise logging operations and assure BMPs were applied (EPA-HQ-OW-2015-0668-0075). Also, as one commenter noted, effective outreach and training programs have served to foster a culture of high BMP implementation rates such that BMPs have largely been institutionalized in the forestry community.

States frequently revise their forest roads management guidance/regulations. States with significant forestry operations have mechanisms in place to evaluate the effectiveness of forestry BMPs and use monitoring and research results to revise these practices when necessary (typically by government appointed forestry boards, forestry commissions, or a mix of agencies, councils, or departments). For example, California Department of Forestry and Fire Protection revised its Forest Practice Rules in 2015 to better manage drainage and erosion from logging roads (EPA-HQ-OW-2015-0668-0055); Wisconsin DNR-Division of Forestry revised its Forest Management Guidelines in 2011,9 including updating forestry BMPs for water quality; and the Oregon Board of Forestry increased the riparian zone buffer width for fish-bearing streams in 2015 (Oregon Riparian Rule, 2015). States, federal agencies and various stakeholder groups continue to enhance BMP prescriptions and identify the site-specific factors that influence their effectiveness. For example, industry commenters identified 36 states that have revised their forest road BMPs within the last ten years (EPA-HQ-OW-2015-0668-0089), and according to a recent state survey conducted by the National Association of State Foresters, 31 states (62%) have updated their forest roads management guidance/regulations since 2006.10 EPA's own analysis also indicates that many states have revised their programs, with some being revised as recently as 2016 (State Program Summary, 2016).

At the federal level, the USFS and the BLM have established programs to manage stormwater discharges from forest roads on federal lands. These agencies manage large tracts of forested lands, including lands that are actively being used for road building, road maintenance, logging operations, public and recreational use or other activities, and generally demonstrate sound environmental stewardship in managing these lands.

The 193 million acres (780,000 km2) of public land that are managed as national forests and grasslands are collectively known as the National Forest System. These lands are located in 44 states, Puerto Rico, and the Virgin Islands and comprise about 9% of the total land area in the U.S. The USFS manages approximately 20% of the Nation's forested area and nearly 10% of the Nation's rangelands (USFS Strategic Plan FY: 2015-2020). The lands are organized into 154 National Forests and 20 National Grasslands. The mission of the National Forest System is to manage the national forests and grasslands to meet the Agency's sustainable multiple-use mandate.

The USFS uses several tools and strategies, such as the Legacy Roads and Trails program, Watershed Condition Framework, and the National Best Management Practices Program, in addition to local programs, to maintain and improve watershed health and manage discharges from forest roads.

The Legacy Roads and Trails program assists the USFS in identifying legacy roads in national forests and grasslands. USFS targets projects that will minimize the discharge of stormwater by decommissioning, maintaining, or upgrading various roads. From 2009-2015, the USFS decommissioned 5,504 miles of National Forest System Roads and an additional 6,714 miles of unauthorized roads; reconstructed 13,413 miles of roads; and maintained 57,333 miles of roads per year during that period.

The USFS Watershed Condition Framework helps the USFS to assess watershed health in national forests and grasslands, identify and implement protective measures, and conduct ongoing watershed monitoring. Watershed conditions are categorized into three discrete categories or classes that reflect the health of the watershed. One primary emphasis of the watershed assessment is indicators that directly or indirectly impact soil and hydrologic functions as well as riparian and aquatic ecosystems. Initial watershed condition framework assessments for all watersheds on USFS lands were completed in 2011.11

In 2012 the USFS also initiated and began to implement a National BMP program integrating water resource protection into landscape management activities. The National BMP program is designed to improve agency performance, accountability, consistency, and efficiency in protecting water quality. The program consists of National Core BMPs, standardized monitoring protocols to evaluate BMP implementation and effectiveness of the National Core BMPs, and a data management system to store and analyze the resulting monitoring data. National Core BMPs address 11 subject areas affecting water quality. One of those subject areas is road management activity, which includes BMPs for travel management planning and analysis, road location and design, road construction, and stream crossings (USFS, 2012). The National BMP based program enables the USFS to document compliance with the management of nonpoint source pollution at local, regional, and national scales as well as address the 2012 land management planning rule requirement for national BMPs at 36 CFR 219.8(a)(4).

The USFS monitors road management BMP implementation and its effectiveness at protecting water, aquatic, or riparian resources through nine evaluation categories and/or time periods, some of which include: Construction and reconstruction of USFS system roads and/or waterbody crossings; after construction or reconstruction has been completed; long-term management and maintenance of USFS system roads; decommissioned roads after decommissioning activities have been completed; and roads, parking areas, and snow storage areas during snow removal and storage activities.

The USFS has also developed a National Core BMP Technical Guide intended to improve USFS accountability and performance in managing water quality programs. Many of the core BMPs in the National Core BMP Technical Guide address water quality. The Technical Guide also provides administrative directives to allow for the use of state, tribal, and local requirements and information to develop site-specific BMPs where needed (USFS, 2012). The USFS is currently developing a second volume of the National Core BMP Technical Guide that will provide standardized protocols for monitoring BMP implementation and effectiveness across all USFS lands.

Further, USFS has developed a suite of tools to identify and prioritize road segments at risk of impacting water quality. These tools operate at scales of detail ranging from using corporate road databases and digital elevation data to using detailed GPS surveys. These tools apply in watershed sediment load reduction plans for waters listed as impaired under the CWA and in forest restoration projects under the Collaborative Forest Landscape Restoration Program in the states of Idaho, Montana, and California. For example, the Geomorphic Road Analysis and Inventory Package (GRAIP) tool includes methods to inventory roads and analyze the inventory for surface erosion, and risks for gullies, landslides, and stream crossing failures. This tool can be used in combination with other field observations to assess forest roads.

As an example of implementation of the USFS's BMP programs, the USFS evaluated its Pacific Southwest Region BMP program from 2008-2010 through 2,237 BMP inspections. It found that BMP implementation was 91% and effectiveness was 80%, with water quality affected at streams on 12% of sites. The USFS is continually improving and updating its programs and tools as accomplishments are monitored and verified. In 2013, the USFS completed an interim National BMP monitoring database for the National BMP program. The USFS expects to integrate this interim database into an enterprise data management system in the future which will extend reporting and analysis capabilities of the database.

In fiscal year 2014, 97 USFS administrative units completed a total of 600 BMP evaluations as part of implementing in the National BMP monitoring program. As discussed above, the USFS national core BMPs address 11 subject areas that potentially could affect water quality, including “road management activities.” Nine monitoring protocols have been developed for the road management activity BMPs. At least 1 BMP evaluation was completed on 87% of the USFS administrative units; over 100 evaluations were conducted for road management activity BMPs. Of the 600 total evaluations, 94% included implementation assessments, 90% included effectiveness assessments, and 85% included both implementation and effectiveness assessments.

Overall, 61% of the BMP implementation evaluations were rated as “fully implemented” or “mostly implemented.” In addition, 65% of the BMP effectiveness evaluations were rated as “effective” or “mostly effective.” For sites where BMP implementation and effectiveness were both evaluated, 56% had composite ratings of “excellent” or “good.” For road management activities, approximately 70% of the evaluations identified BMPs that were fully or mostly implemented. With regard to road management BMP effectiveness, approximately 50% of the completed evaluations were found to be effective or mostly effective. In the study the USFS acknowledges that these data show room for improvement in BMP implementation and effectiveness but observes that prior to development of the National BMP Program, it was impossible to report on BMP implementation and effectiveness on a national scale in a coherent, understandable, and useful way.

In December 2015, the USFS published the National Best Management Practices Monitoring Summary Report for the two-year BMP phase-in period of fiscal years 2013 and 2014 following the launch of the 2012 National Best Management Practices program. That report summarizes the national results of the two year phase-in period of national BMP monitoring. The report demonstrates the capabilities of a consistent nationwide monitoring program to document BMP performance (USFS, 2015). In addition, as part of the Watershed Condition Framework, the USFS is currently undertaking a five year re-assessment to assess changed conditions of USFS watersheds.

For example, USFS is using outputs from the GRAIP tool, mentioned previously, in combination with associated field observations to assess the effectiveness of road decommissioning in Idaho, Montana (Cissel et al., 2014a), Oregon, Utah, and Washington. BMPs implemented as part of the decommissioning efforts resulted in a 79% reduction in fine sediment delivery to streams (Cissel et al., 2014b).

The USFS implements best practices to control stormwater from forest roads on a program-wide scale in a number of ways, as well as ensuring that specific projects are implemented properly. Where a USFS road crew is in place, the agency performs maintenance and construction/reconstruction to the extent the law allows. BMPs are followed according to USFS policy, incorporating any national, regional, and local level BMPs. Crews work closely with local resource specialists to ensure work is being performed according to BMPs. When a project is awarded under a contract, clauses, provisions, mitigation measures, and BMPs are incorporated into the plans, specifications, and contract documents. For example, some contract provisions require the contractor to preserve, protect, and minimize the impacts from soil erosion to streams, lakes, and reservoirs.12 A Contracting Officer or their certified designees monitor work performed by the contractor to ensure work compliance with the terms and conditions set forth in the contract.

The USFS is a recognized leader in establishing road crossing techniques that provide for aquatic organism passage, or the ability for fish and other aquatic life to move up or downstream under roads. In 2005, the USFS created the National Inventory and Assessment Procedure to evaluate the effectiveness of current and remediated fish passages (USFS, 2005). Over 1,600 miles of habitat were restored in fiscal years 2011-2013 by aquatic organism passage projects funded through the USFS Legacy Roads and Trails Restoration program among others (USFS, 2014).

BLM manages approximately 246 million acres of public lands (BLM, 2015). Most BLM lands are concentrated in 11 western states with scattered tracts in the various eastern states. Of the 246 million acres, approximately 50 million acres are forest or woodlands where approximately 6-7 million acres are managed for sustainable timber harvests. These areas are generally mesic sites with annual average precipitation that usually exceeds 15 inches per year. Traditional timber harvesting on BLM property occurs primarily in northern California, Colorado, Idaho, Montana, Oregon, and Wyoming, with minimal harvest occurring in Alaska, Arizona, Nevada, New Mexico, and Utah. BLM uses several tools including land use plans, Memoranda of Understanding (“MOU”) with states and other federal agencies, timber sale contracts, and training to ensure protection of water resources.

Most BLM lands are managed pursuant to the Federal Land Policy and Management Act of 1976 (FLPMA), at 43. U.S.C. 1712, which requires public lands to be managed under the principles of multiple-use and sustained yield. BLM's land use planning regulations at 43 CFR part 1600 establish a land use planning system for BLM-managed public lands. Similar to the USFS, a full suite of activities are authorized and managed on BLM forests and woodlands, including timber harvesting, hazardous fuel reduction treatments, recreation, fish and wildlife conservation, oil and gas activities, and grazing. Authorized uses in forests and woodlands such as timber harvesting often include road construction and maintenance 13 which are broadly governed by policies, standards, and right-of-way agreements that ensure proper design and upkeep.14

One source of guidance for proper development of BLM land use plans is BLM's Land Use Planning Handbook. The Handbook provides broad agency direction for BLM to use BMPs to meet the standards and goals of the CWA and address various protection measures to mitigate impacts to human health concerns, ecosystem health, riparian areas, and overall watershed conditions, and to meet state and local water quality requirements (BLM, 2005).

BLM state offices enter into interagency MOUs with state and other federal agencies designed to ensure that they cooperatively meet state and federal BMPs and water quality rules and regulations related to point and nonpoint source water pollution from BLM managed lands.15 These MOUs clarify such issues as jurisdictional and statutory authorities, monitoring responsibilities, implementing effective BMPs, prioritizing restoration activities, and developing strategies to meet water quality standards. The Idaho Nonpoint Source Management Plan provides one example of such an MOU (Idaho DEQ, 2015). In addition, several components of BLM state and national level manuals apply to ground-disturbing activities and provide for consistent implementation of BMPs.16

Finally, all BLM timber sales contracts contain standard contract requirements that expressly require that the purchaser must comply with all applicable state and federal laws and regulations pertaining to water quality. Often, they include special provisions deemed necessary (e.g., restrictions on wet weather operations, conditions addressing Endangered Species Act requirements, soil and aquatic protection requirements, etc.).17 Individual BLM offices consistently add special provisions to timber sales as well as other ground disturbing activity contracts to ensure effective BMP implementation. Appropriate BMPs are identified at the Resource Management Plan level, analyzed during site-specific NEPA review process, and implemented in various ways such as direct performance by BLM crews or through a timber sale contract.

BLM also provides training for their specialists in all aspects of resource management including engineering (to include roads and facilities), forest management, fish and wildlife management, and hydrology. Training curricula include: Review of existing and new state and federal regulations, manuals, handbooks, and policies including compliance with BMPs; preparing and administering contracts; review of interagency agreements or MOUs; review of updates on monitoring, evaluating, and reporting protocols and agency monitoring databases; review of Resource Management Plans and amendments; and conducting National Environmental Policy Act reviews.

BLM incorporates BMPs into land use plans that include management of forest roads. The recently released western Oregon Proposed Resource Management Plan/Final Environmental Impact Statement, Appendix J provides one example of such a plan (BLM RMPWO Vol. 3 Appendix J, 2016). The BMPs for the western Oregon Proposed Resource Management Plan address various anticipated resource management actions including: Road and landing maintenance and construction, timber harvest activities, silviculture activities, surface source water for drinking water, and recreation management. These BMPs were developed in coordination with Oregon Department of Environmental Quality to cooperatively meet state and federal water quality regulations. Additional BMPs could be required for a particular project depending on site-specific needs and subsequent implementation and effectiveness monitoring. BLM field offices review the land use plan BMPs and select and apply the appropriate and applicable BMPs for a particular project. Those BMPs are incorporated into on-the-ground operations like timber sales, road maintenance, road construction, and riparian restoration projects.

Although the BLM does not have a national BMP monitoring database like the USFS, it works closely with a number of state and federal agencies to annually monitor, evaluate, and report BMP compliance and effectiveness. One example demonstrating the success of resource management plans to protect water quality is the Northwest Forest Plan (NWFP). Approximately 2.5 million acres of forested BLM land falls within the area covered by the NWFP and those acres have been managed consistent with the NWFP standards and guidelines. All of those standards and guidelines were incorporated into the 1995 western Oregon resource management plans.

The Aquatic Conservation Strategy is an important element of the NWFP, which incorporates into the resource management plans the implementation of a riparian reserve system (e.g., buffers) along streams as well as reducing road densities. Since 1995, western Oregon BLM Districts have decommissioned or obliterated over 883 miles of roads.

As mentioned above, BLM has released a proposed resource management plan and a final environmental impact statement for western Oregon BLM Districts to revise the 1995 resource management plans. Under the proposed resource management plan, the riparian reserve system, along with a late successional forest reserve system, would increase from 57% following the 1995 resource management plan to 64% following new guidelines. BLM has worked closely with over 20 cooperating agencies including U.S. Fish and Wildlife Service, National Marine Fisheries Service, and EPA to continue a comprehensive and regional strategy to maintain and improve aquatic resources in alignment with the overarching ecosystem principles and intent of the Aquatic Conservation Strategy of the NWFP under the new RMP.

The recently released “Northwest Forest Plan Interagency Regional Monitoring: 20 Year Report, Status and Trends of Watershed Condition” report summarizes the results of the twenty year interagency effort to implement an array of water quality protective measures in the Aquatic Conservation Strategy to maintain watershed health in that region (Northwest Forest Plan, 2015). The NWFP Aquatic Conservation Strategy consists of four components: Riparian reserves, key watersheds, watershed analysis, and watershed restoration. Once watershed conditions were evaluated and resource needs were identified, multiple agencies, as well as public stakeholders, partnered to complete millions-of-dollars' worth of watershed restoration work include: Providing fish passages through culvert removals, replacements, or bridge construction; obliterating, closing, or relocating streamside roads; vegetating disturbed areas; reducing hazardous fuel loads; upgrading road surfaces to reduce sediment runoff; and removing dams. Implementation of these four components has resulted in improved watershed conditions in many watersheds.

The recently released monitoring report's objective was to evaluate whether the NWFP Aquatic Conservation Strategy is achieving the goal of maintaining and restoring the condition of watersheds throughout the region covered by the NWFP. The report evaluated two subject areas: Upslope riparian areas for all watersheds with at least 5% federal ownership, and in-channel stream data (e.g., temperature, sediment, and macroinvertebrates). The report compares the effectiveness of management practices under the aquatic conservation strategy direction for two periods: 1993 and 2012 for upslope riparian assessment, and rotational sampling between 2002-2009 and 2010-2013 for in-channel stream assessment. These monitoring data were used to detect trends and evaluate stream and upslope riparian conditions for 1,974 watersheds in the Pacific Northwest.

The report signified that there has been a slight positive shift in upslope riparian condition. Sediment scores were generally very high, indicating a low risk of roads delivering sediment to streams. Sharp declines in assessment scores were mainly driven by large wildfires, and were offset by moderate, broad-scale improvements in vegetation, and focused improvements related to road decommissioning.

BLM also uses technical tools for evaluation, planning, and assessment of water quality. BLM is applying the USFS GRAIP tool, as well as others, in western Oregon watersheds to assess the effectiveness of road decommissioning and in sediment load reduction plans for waters listed as impaired under the CWA. These tools will also be used to prioritize the backlog of deferred maintenance needs that are later identified in the western Oregon Final Environmental Impact Statement, Chapter 3, Trails and Travel Management.

Outside of western Oregon, BLM is involved with various state, regional, and national water quality monitoring efforts to assess management effectiveness including indirect effectiveness of BMPs related to forest management and roads. For example, BLM cooperates with the Montana State Environmental Quality Council to monitor how forest practices are affecting watersheds in Montana. Montana conducts BMP field reviews on state, federal, and private industrial and non-industrial forest lands to monitor BMP implementation and effectiveness. Montana's 2014 BMP review concluded that 96% of BMP practices were effective on federal lands (Montana DNRC, 2014).

BLM has conducted a number of successful watershed restoration efforts to improve water quality on BLM lands. One example is the BLM Headwaters Forest Reserve Road Restoration Project in California. Since 2000, BLM has worked with the Pacific Coast Fish, Wildlife and Wetlands Restoration Association to decommission and restore 26 miles of old logging roads throughout headwaters. An additional 5 miles of decommissioning is planned for the next several years.18

Both the USFS and BLM have improved their programs that address water quality and stormwater from forest roads over the last several years. As noted above, the USFS launched a new National BMP program in 2012 and is currently monitoring the program for results. In addition, the USFS has enhanced its Road Preconstruction Handbook on Design 19 as well as the Transportation Structures Handbook on Hydraulics and Watershed Protection 20 to include design considerations for the construction and reconstruction of forest roads which minimize road and drainage impacts to the watershed. USFS Technology and Development Centers have created a number of publications to assist designers when addressing road/water interactions.21 BLM has taken extensive efforts to improve its protection and restoration efforts of watersheds by addressing key resource areas and improving resource management plans. Even with limited resources, federal programs are using new technology to target highest priority problems in watersheds to mitigate water quality impacts and monitor watershed health and project effectiveness. Improved resource management plans and technology will likely continue to evolve and lead to greater improvements.

In addition to state and federal forest road BMP programs, participation in third party forest certification programs has been increasing rapidly in the U.S. Forest management certification arose to foster an improved stewardship of working forestlands. Programs such as certifications, which provide information and disclosure to consumers, can generate significant beneficial impacts on the environment while imposing fewer costs on industries and producers than direct regulatory programs.22 Requirements to disclose information to citizens and consumers can lead to beneficial change without specific behavioral mandates. Certification provides a market incentive to encourage landowner commitment to sustainable forest management. It also offers a stamp of approval for forest management practices that meet standards considered to be environmentally appropriate, socially beneficial, and economically viable.

The three largest forestry certification programs in the U.S. are the Forest Stewardship Council (FSC), the Sustainable Forestry Initiative (SFI), and the American Tree Farm System (ATFS). These programs promote higher rates of BMP implementation by mandating compliance with applicable state and local laws and applicable BMPs, whether regulatory or voluntary. They promote training/education (including continuing education) and the use of trained loggers, promote monitoring of forestry BMP implementation, and include mechanisms for addressing instances where BMP nonconformance is observed. FSC requires expanded protection for waterbodies where it deems state programs or existing guidelines insufficient to protect water quality.

EPA received comments from state forestry agencies highlighting the large areas of state forested land under one of the third-party certifications identified above. For example, the Idaho Department of Lands notes that over 1.5 million acres of forest lands in Idaho are privately held or owned and managed by industries that maintain third-party certification through SFI, FSC or ATFS (EPA-HQ-OW-2015-0668-0072). Maine has almost 8 million acres of forest land which is third-party certified (EPA-HQ-OW-2015-0668-0058); and in Mississippi almost 470,000 acres of public forest land is certified through the ATFS and audited annually to ensure proper BMP implementation (EPA-HQ-OW-2015-0668-0081).

The discussion below provides a brief description of the three major programs in the U.S., focusing on how they promote management practices for mitigating water quality impacts resulting from stormwater discharges from forest roads.

FSC is an independent group with open membership that first convened in 1993 to improve forest practices internationally through a voluntary, market-based approach. FSC's program places an emphasis on whole-forest conservation, including protecting water resources from effects of stormwater discharges from forest roads. FSC is the only standard that prohibits the use of certain pesticides and herbicides in the timber industry and prohibits large clearcuts where they threaten the ecological integrity of the forest.

FSC's program includes a series of overarching principles and more specific performance criteria. An example forest management certification criterion is Forest Management Standard Criterion C6.5, which states, “[w]ritten guidelines shall be prepared and implemented to: control erosion; minimize forest damage during harvesting, road construction, and all other mechanical disturbances; and protect water resources.” One “indicator” of this criterion provides that “[f]orest operations meet or exceed BMPs that address components of the Criterion where the operation takes place.” Another provides,

Yet another indicator requires that, “[a] monitoring program is in place to assess the condition and environmental impacts of the forest-road system.” Certifiers are independent of FSC itself and the companies they audit.

SFI is an independent, nonprofit organization that is responsible for maintaining, overseeing, and improving the SFI certification program. Across the U.S. and Canada, more than 280 million acres are certified to the SFI Forest Management Standard and additional acres are influenced by SFI Fiber Sourcing. SFI administers standards that address forest sustainability broadly and water quality specifically. The SFI 2015-2019 Forest Management Standard applies to any participating organization in the U.S. or Canada that owns or has management authority for forestlands and consists of measures designed to protect water quality, biodiversity, wildlife habitat, species at risk, and forests with exceptional conservation value. The measures require developing a program for certification and compliance that include monitoring BMPs during all phases of forestry activities, mapping of water resources, and recordkeeping. For example, Objective 3 in the Standard addresses “Protection and Maintenance of Water Resources—To protect the water quality of rivers, streams, lakes, wetlands, and other water bodies through meeting or exceeding best management practices.” Under Objective 3, Performance Measure 3.1 provides that “Program Participants shall meet or exceed all applicable federal, provincial, state and local water quality laws, and meet or exceed best management practices developed under Canadian or EPA-approved water quality programs.” Performance Measure 3.2 further provides, “Program Participants shall implement water, wetland, and riparian protection measures based on soil type, terrain, vegetation, ecological function, harvesting system, state (BMPs), provincial guidelines and other applicable factors.” Objective 11 addresses “Training and Education” and Performance Measure 11.1 provides that “Program Participants shall require appropriate training of personnel and contractors so that they are competent to fulfill their responsibilities under the SFI 2015-2019 Forest Management Standard.”

SFI noted in its comments that 95% of the fiber delivered to SFI Program Participant mills is delivered by harvesting professionals who have been trained in sustainable forestry practices (EPA-HQ-OW-2015-0668-0099). Additional Forest Management Standard Objectives address Forest Management Planning (Objective 1) and Legal and Regulatory Compliance (Objective 9).

ATFS is a program of the American Forest Foundation, and has a forest certification standard that applies to small landowners in the U.S. In 2009, ATFS had certified more than 25 million acres of privately owned forestland managed by over 90,000 family forest landowners. To become certified, ATFS landowners must own at least 10 acres of forestland and implement a written forest management plan; and follow ATFS and AFF's 2015-2020 Standards of Sustainability for Forest Certification for Private Forestlands. Tree farms are inspected and certified to assure proper forest management that includes the conservation of soil, water and wildlife. Standard 4: Air, Water, and Soil Protection provides that “[f]orest-management practices maintain or enhance the environment and ecosystems, including air, water, soil, and site quality.” Performance Measure 4.1 provides that each “[l]andowner shall meet or exceed practices prescribed by state forestry BMPs that are applicable to the property.”

All three certification programs described above continue to update standards on a regular basis. FSC has continually revised its Principles and Criteria since 1994, with the most recent revision in 2012. FSC also developed a U.S. Forest Management Standard in July 2010, which was updated in September 2012. SFI revises its standards every five years, and has most recently updated them in January, 2015. ATFS is required to review its standards every five years as part of its conditions for endorsement by the Programme for Endorsement of Forest Certification, an umbrella organization that works with national certification programs to promote sustainable forest management.23 All programs include opportunities for public and other stakeholder input through public comment periods, webinars, and surveys.

In addition to the state, federal, and third-party BMP-based programs described above, EPA administers other programs under the CWA that address forest road discharges. Stormwater point source discharges from forest roads have traditionally been treated similarly to nonpoint sources of pollution under the CWA. EPA has addressed these discharges under Sections 303, 305, and 319 of the CWA, and for the coastal areas, under Section 6217 of the Coastal Nonpoint Source Pollution Control Program under the Coastal Zone Act and Reauthorization Amendments (CZARA).24

Under Section 319 of the CWA, EPA provides technical and financial support to states in their administration of programs that address pollution from nonpoint sources and activities that are not required to be regulated by NPDES permits. Many state nonpoint source management programs, which include components for the implementation of forestry-related BMPs, were initiated and continue to be supported, in part, through the use of Section 319 grant funds. According to EPA's 2011 National Evaluation of the Section 319 Program of the CWA, at least 15 state programs (AL, AR, CA, GA, KY, LA, MT, NC, OK, OR, SC, TX, VA, WV, WY) administer state-wide forestry nonpoint source management programs aimed at addressing problems associated with forest harvesting operations. At least ten of these states (AL, AR, GA, KY, LA, NC, OK, SC, VA, WV) rely on Section 319 grant funding through the relevant state forestry agency to support water pollution controls associated with forestry activities. In many of these states, the state nonpoint source management control agency has a formal relationship with the state forestry commission (or agency or department) to jointly implement the forestry program. EPA guidance provides that states are expected to revise and update their programs every 5 years as part of ensuring eligibility for continued funding. (Nonpoint Source Program and Grants Guidelines for States and Territories, 2013).

States have flexibility under the Section 319 program to address problems not addressed by the NPDES program. State Section 319 programs may encompass watershed or water quality-based approaches aimed at meeting water quality standards directly; iterative, technology-based approaches based on best management practices or measures, applied on either a categorical or site-specific basis; or a mix of these approaches. State forestry BMP-based programs apply these approaches using forestry BMP prescriptions and monitoring to address water quality impairments including forest road runoff, and EPA approves these programs as part of the Agency's review of state nonpoint source programs.

EPA has developed a Grants Reporting and Tracking System (GRTS) to track projects that receive Section 319 grant funding. It also enables EPA and the states to characterize the types of projects funded with the use of Section 319(h) grant funds. A sample GRTS query of projects shows that a number of Section 319(h) grants have been provided to address forest roads, such as road construction and maintenance projects, across the country. (Grants Reporting and Tracking System Forestry Data Pull, 2016). Section 319 funding remains available to address forest roads impacts in those states which have prioritized this as an issue in their nonpoint source management plans.

EPA has published various guidance documents to assist forest owners in protecting waters from forestry related runoff, and to help states to implement their Section 319 control program. For example, EPA published the National Management Measures to Control Nonpoint Source Pollution from Forestry (EPA, 2005) which includes BMPs for road construction, reconstruction, and management. In 2007, EPA also provided funding assistance to the Pennsylvania Department of Transportation to develop a manual which provides national guidance on effective and efficient practices to apply on dirt and gravel roads to reduce erosion, sediment, and dust pollution.25

Section 6217 of CZARA addresses enhancements to state Coastal Zone Management Act (CZMA) programs through development and implementation of management measures for nonpoint source pollution control to restore and protect coastal waters. This program, which is administered jointly by EPA and the National Oceanic and Atmospheric Administration (NOAA), directs states and territories with approved CZMA programs to provide for implementation of management measures for controlling runoff from activities within six categories of nonpoint source activities, including forestry. Each coastal state or territory administering a CZMA program (approved by NOAA) is required to describe its program to implement nonpoint source pollution controls, known as management measures, in conformity with a guidance published by EPA under CZARA Section 6217(g). The guidance describes ten management measures for forestry, including management measures for planning, road construction/reconstruction, and road management. As implemented under a state's CZMA program, CZARA requires enforceable policies and mechanisms, as well as monitoring and tracking of management measure implementation. NOAA and EPA are required to review and approve coastal nonpoint programs of state and territorial CZMA programs, and state authorities are responsible for implementing these programs. In all, EPA and NOAA have reviewed the programs submitted by 33 states and territories and, in many cases, approved such submissions with conditions. Over time, affected states and territories took action to address the program conditions incrementally. Since the federal agencies' initial approvals with conditions, all but 10 states have now met all of the outstanding conditions.26

Under Section 305(b) of the CWA, states are required to assess the quality of their surface waters and report this information to EPA. In addition, every 2 years Section 303(d) requires states to identify on their Section 303(d) lists, which they submit to EPA for approval, those waters that are not attaining water quality standards, referred to as “impaired waters,” and waters not expected to attain water quality standards by the next two-year listing cycle, referred to as “threatened waters.” 33 U.S.C. 1313(d)(1)(A); 40 CFR 130.7(b). States must also establish a priority ranking for establishing total maximum daily loads (TMDLs) of pollutants for those waters. Id. TMDLs are “pollution budgets” that calculate how much of a given pollutant a waterbody can assimilate, including a margin of safety, without exceeding its applicable water quality standards. 33 U.S.C. 1313(d)(1)(C). TMDLs also allocate shares of the waterbody's assimilative capacity for that pollutant to all of its point and nonpoint sources. 40 CFR 130.2(i). Pollutant allocations may be assigned to individual sources or aggregated to sectors such as forest roads. Like Section 303(d) lists, states submit TMDLs to EPA for approval.

Impaired waters lists and TMDLs established for those impaired waters are “informational tools,” Pronsolino v. Nastri, 291 F.3d 1123, 1129 (9th Cir. 2002), that help states evaluate the significance of pollutant sources like forest roads in contributing to water quality impairments in the U.S and guide implementation of measures to address those impairments. Nationally, pathogens, mercury, other metals, sediment, nutrients, and organic enrichment/oxygen depletion are identified as the leading causes of impairment of all assessed water bodies, based on state electronic data submissions from 2004 through 2010.

While TMDLs at their core are pollutant loading calculations and allocations, they also can provide a “comprehensive framework” for pollution reduction in a body of water that fails to meet state water quality standards. Amer. Farm Bureau Fed'n v. EPA, 792 F.3d 281, 287-288 (3rd Cir. 2015). While approving or establishing a TMDL, EPA requires “reasonable assurance” from the states that their TMDL implementation plans will meet their stated goals, i.e., achieve the TMDL's allocations and implement the applicable water quality standards. Id. at 300. In support of EPA's recently revised TMDL for Lake Champlain, for example, Vermont detailed specific actions it would take to reduce the flow of sediment into Lake Champlain, including enhancing its forest roads forest management practices to reduce erosion (EPA Region 1, 2016).

EPA considered national TMDL data to determine whether forest roads have been identified as sources of water quality impairment and addressed in TMDL load allocations designed to help meet water quality standards.27 For example, Endicott (2008) indicates that in California TMDLs were required for 10 river basins where silviculture was identified as a potential source. EPA reviewed three of these TMDLs (Upper Main Eel River and Tributaries TMDL, 2004; Mad River TMDL, 2007; Redwood Creek TMDL, 2011) and found that roads and road related landslides were the leading anthropogenic cause of sediment loading in these watersheds. While EPA is unable to develop national-level summary data to describe the degree of impairments from forest roads, EPA notes that these and other TMDLs serve as existing CWA planning tools that guide silviculture-related pollutant reduction activities on a watershed-specific basis. See also Pronsolino v. Nastri supra at 1129, where the Ninth Circuit upheld an EPA-established TMDL addressing sediment pollution to the Garcia River caused by roads, timber-harvesting, road surfaces, and road and skid trail crossings.

As discussed above, many rigorous programs exist at every level of government as well as in the private sector to address stormwater discharges from forest roads in the United States. The programs are regularly updated to reflect new technology and research findings, are specifically tailored for the locations in which they are implemented, and have high implementation rates. While these programs have limitations and may vary in their effectiveness, EPA has concluded that providing support for further improvement to these programs will be more effective in further addressing discharges from forest roads than would the establishment of a new federal regulatory program under CWA Section 402(p)(6).

A number of practical considerations also militate against the establishment of a new federal regulatory program for forest roads. These include the site-specific nature of the environmental problem, the complex ownership arrangements of forest roads, and the limited financial resources and legal tools for addressing these roads, all discussed further below. A new program could require the expenditure of substantial resources while duplicating or displacing existing programs, with limited incremental environmental results. EPA has determined that the theoretical benefits of creating a “federal floor” do not outweigh its certain implementation problems, high costs, and potential duplication or displacement of longstanding and maturing federal, state, and private initiatives to address stormwater discharges from forest roads.

A primary difficulty in establishing a new, nationwide regulatory regime is the variability in water quality impacts from forest roads across the country. Many factors affect the extent to which BMPs are needed and those best suited to particular locations, including physical and meteorological factors (e.g., climate, topography, soil type), which affect the nature of erosion and sedimentation; the intensity of timber operations; and localized scientific research and water quality data. A national regulation addressing such site-specific issues would likely be either too general or too complicated to be successful. The current multi-faceted, multi-layered landscape best supports the site-and region-specific nature of effective BMPs.

The options laid out in Section 402(p)(6) of the CWA, the authority pursuant to which EPA could have designated stormwater discharges from forest roads for regulation, resemble the existing universe of forest roads control programs in the U.S. The types of regulatory actions that EPA could hypothetically take under Section 402(p)(6) are similar to the types of requirements and programs that states and other entities across the U.S. have already established, as described above. Section 402(p)(6) authorizes EPA to: “establish priorities, establish requirements for state stormwater management programs, and establish expeditious deadlines” which may include “performance standards, guidelines, guidance, and management practices and treatment requirements, as appropriate.” 33 U.S.C. § 1342(p)(6). Many “state stormwater management programs” already exist and address discharges from forest roads in a manner specifically tailored to conditions in each state. See Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct 1326, 1338 (2013) (“Indeed, Congress has given express instructions to the EPA to work `in consultation with State and local officials' to alleviate stormwater pollution by developing the precise kind of best management practices Oregon has established here. 33 U. S. C. § 1342(p)(6)”). In addition, states, agencies and organizations, including the USFS and EPA, have published “guidelines” and “guidance” discussing “management practices.” Every state and state organization that submitted comments to inform EPA's determination strongly opposed additional federal regulations. EPA has decided to help states strengthen their programs rather than supplant them, consistent with the CWA's policy to “recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution” and to plan the “use . . . of land and water resources.” 33 U.S.C. 1251(b).

Supporting rather than duplicating state programs is also consistent with the CWA's policy of fostering governmental efficiency: to “encourage the drastic minimization of paperwork and interagency decision procedures, and the best use of available manpower and funds, so as to prevent needless duplication and unnecessary delays at all levels of government.” 33 U.S.C. 1251(f). An EPA program would add another layer of bureaucracy for both regulators and the private sector, sow confusion about program requirements and responsibilities, and lead to an inefficient use of already thin management resources, all for potentially limited environmental benefit.

While Section 402(p)(6) could otherwise generally allow for regulation through some sort of permitting, Congress has specifically foreclosed that option for discharges “resulting from the conduct of the following silviculture activities conducted in accordance with standard industry practice: nursery operations, site preparation, reforestation and subsequent cultural treatment, thinning, prescribed burning, pest and fire control, harvesting operations, surface drainage, or road construction and maintenance.” 33 U.S.C. 1342(l). Congress has also precluded third-party citizen suits to enforce any non-permitting program established under Section 402(p)(6) or any other limitations applied to silviculture activities. In the absence of these implementation and enforcement mechanisms, it would be difficult to provide for effective federal implementation and compliance assurance for a new set of national forest road discharges.

Some commenters urged EPA to establish mandatory requirements pursuant to Section 402(p)(6), including prioritization of forest management areas, requiring road inventories, and monitoring for water quality standards. Many of these elements are part of state programs already. Requiring all forest landowners in the country to submit data to EPA about roads on their properties would necessitate a resource-intensive outreach operation. The large number of private family forest owners in the U.S. and Internet broadband limitations in rural areas, among many other factors, would make it difficult to ensure that forest road owners and operators are aware of and comply with such this requirements; legacy roads with no apparent owner would present even greater challenges. Additionally, as one commenter pointed out, many programs are targeted at certain impacted watersheds or aquatic species. An inventory of all forest roads, many of which do not cause water quality problems, does not necessarily provide information needed to address these particular impacts. Obtaining forest roads inventory information would likely be easier where large areas of forest are managed by a single entity, such as the USFS, but those entities are the ones most likely to already be engaging in inventory efforts (as described in section VI.B.1 of this document). Given these challenges, EPA does not believe that creating a new federal inventory of forest roads is a cost-effective use of EPA's limited resources.

Requiring water quality monitoring poses another distinct set of problems. Water quality monitoring is in-situ (ambient water) sampling for one or a selected set of environmental indicators. These metrics can be biological (e.g., macroinvertebrates or fish community health), chemical (e.g., pollutant concentrations), or physical (e.g., geomorphology). This approach is not typically used to assess one or a few BMPs because in-situ water quality is influenced by multiple local and upstream factors/sources, and statistical distinctions between these factors and determining relative contributions may be impossible. Endicott (2008) reported findings “that the biotic and chemical `noise' in larger streams renders the water quality effects of forestry activities using BMPs undetectable.”

EPA recognizes that existing forest road BMP programs have limitations, including limited funding. Resource constraints are a primary difficulty facing both state and federal programs, limiting their abilities to implement and monitor BMPs. Yet a new set of requirements from EPA would not address the funding gap. Indeed, another federal program could divert resources from on-the-ground stream protection efforts to bureaucratic reshuffling. EPA has decided not to expend resources on creating, implementing, and enforcing a new national program that may not tangibly improve water quality.

As discussed above, programs at the state, federal, and local levels, as well as within the private sector, have demonstrated positive momentum in strengthening efforts to address stormwater discharges from forest roads. EPA seeks to further facilitate continuing improvements in working to address water quality impacts from forest roads. Thus, rather than superimposing additional EPA-regulatory programs over existing programs, EPA plans to help strengthen these existing programs by forming an ongoing dialogue with all relevant stakeholders (including industry, environmental groups, academics, and government agencies at the federal, state, tribal, and local levels) on program improvements, technical and policy issues, research results, state of the art technologies, success stories, and solutions to problem areas. This forum could provide an opportunity for stakeholders to exchange information and expertise. EPA envisions that a major part of these discussions will focus on specific problems and solutions to forest roads, such as existing/legacy roads or stream crossings as well as particularly effective forest road programs and best practices. Working with stakeholders collaboratively, the forum could develop a national compendium of highly effective components of private or governmental forest roads programs to serve as a resource for states, tribes, federal agencies, local government, and industry. The compendium could serve as an indicator of expectations for development, implementation, and/or revisions of forest road programs by highlighting existing robust efforts and the latest developments of evolving strong programs.

The discussion below responds to significant issues commenters raised with regard to the effectiveness of existing BMP-based programs.

Some commenters expressed concerns about the effectiveness of BMPs. In response, EPA makes an important distinction between the well documented ability of properly implemented BMPs to adequately control the discharge of pollutants, and situations where BMPs are improperly implemented or maintained (see multiple studies discussed in Part V). As these studies generally conclude, most BMPs are highly effective when appropriately designed and implemented; this includes choosing the right practice for particular situations and ensuring proper operation and maintenance. BMPs are ineffective or perform sub-optimally when not properly sited, installed, or maintained. These paradigms hold true for all water quality control technologies, not just BMPs, and underscore the importance of vigilant operation and maintenance rather than a conclusion that BMPs are not effective at protecting water quality. For example, Wisconsin DNR (2013) found that when BMPs were applied correctly no adverse impacts to water quality were found 99% of the time, and Montana DNRC (2014) reported that Montana's forestry BMPs were effective in protecting soil and water resources 98% of the time. In addition, as with most technologies, it is important to note that BMP science continues to evolve and improve.

One commenter mentioned a study of two watersheds in the U.S. Pacific Northwest region, which found that 44% of 80 sediment debris slides were associated with roads, even though roads comprised only 3.1% of the area. However, the authors of the study concluded that standard BMPs were the best approach to reducing erosion and sediment delivery rates. This is the approach that states and others are already pursuing in that region.

Another commenter pointed to low BMP efficiency data in Edwards and Williard (2010, as cited in Nolan et al., 2015) but the cited article examined the efficiency of forest harvesting BMPs in reducing sediment, not BMPs related to forest roads in particular. EPA also recognizes that state BMP-based programs have limitations, including that they may not be fully implemented, that their effectiveness differs based on numerous variables, and the difficulty in measuring quantitative results.28 A new federal regulatory program under CWA Section 402(p)(6), however, would not necessarily improve implementation rates, especially given the new limitations in CWA Section 402(l), which preclude the use of permits to implement any such program or of citizen suits to enforce any new federal requirements.

A few commenters discussed specific state forest road programs, such as Oregon's and Washington's. One commenter stated that Oregon's forest roads program is too flexible and is not adequately enforced. The commenter specifically identified the approval/rejection process for written plans as not being sufficiently stringent because there is no requirement to approve or deny a plan. With regard to Oregon (and other states), given the nature and scope of the concerns posed by forest road runoff, a reasonable degree of flexibility is valuable, as it allows for a tailored approach to addressing forest road discharges. See Decker v. NEDC, (“Oregon has invested substantial time and money in establishing these practices. In addition, the development, siting, maintenance, and regulation of roads—and in particular of state forest roads—are areas in which Oregon has considerable expertise”).

Another commenter stated that, in addition to requiring BMPs, Washington State also requires water quality-based numeric criteria for turbidity and has rules for antidegradation, and that this should be required of all states. With regard to Washington State, EPA recognizes that states currently have various approaches to addressing sedimentation concerns (e.g., numeric and narrative turbidity standards, dissolved oxygen standards, temperature standards, etc.) as part of their water quality standards programs. EPA agrees that applying numeric standards can be extremely effective in protecting water quality. However, states are well situated to understand the scope and nature of environmental concerns posed by forest road runoff in their states and apply state water program requirements to those concerns accordingly.

Some commenters, urged EPA to implement a national water quality-based monitoring program for forest roads. Requiring water quality monitoring for stormwater discharges from forest roads is infeasible for the reasons discussed in Section VII. Examining forest road BMP implementation on existing roads indicates whether existing programs are taking available and reasonable steps to address water quality concerns. EPA recognizes that most evaluations and determinations of BMP implementation are qualitative, but nonetheless, that information constitutes the best available information for EPA to make its decision. Extreme storms can pose challenges to the use and performance of BMPs, but BMPs can be tailored to some degree in areas subject to such events. A federal regulation would not alleviate risks posed by extreme storms because it would not be fair or reasonable to impose BMPs in all extreme storm events.29

One commenter stated that forest road BMP programs tend to focus on construction of new roads and fail to address older roads, often built before BMPs were in place (i.e., they are either “grandfathered in” or subject to requirements only when brought back into use, reconstructed, or at risk of significant failure). The commenter observed that older roads can be significant sources of sediment since they may be poorly located and built with few if any features to control erosion (citing Endicott 2008, which includes some studies that identify legacy roads as sources but do not provide data regarding sediment discharged by legacy roads). EPA recognizes that legacy roads present a challenge and a potential source of sediment. Legacy roads are also the most challenging types of roads to address through regulation, however. Legacy roads are often no longer in use, so there may not be an ongoing silvicultural operation to fund BMPs. They may have non-forest uses, also complicating responsibility and liability assignment, or they may not be used for a period of time while timber is growing and then they may be placed back into use when it is ready for harvest. Legacy roads may also be so overgrown with vegetation that their presence is no longer detectable.

Nonetheless, several state programs require older roads to be upgraded to current BMP standards if they are brought back into service. Endicott (2008) indicates that 24 states had forest road BMPs that address road closure. A more recent review indicates that 34 states have BMPs that address forest road retirement (State Program Summary, 2016). Comments indicate that California, Washington, and Oregon are among those states having programs addressing legacy road issues.

A few commenters stated that stream crossings for forest roads are especially vulnerable locations that can lead to significant erosion. One commenter stated that 5% of truck road stream crossings in the southern Piedmont region of Virginia were not meeting the relevant stream crossing BMPs (Nolan et al., 2015) and that failure to meet BMPs in these areas will have a disproportionately negative impact on water quality as compared to upland BMP violations. Another layer of regulations from EPA, however, would not guarantee that the remaining 5% of stream crossings would incorporate appropriate BMPs. While stream crossings are indeed a high risk area for forest road runoff, a recent EPA analysis of state programs showed that 46 states (92%) have developed BMPs for stream crossings. (State Program Summary, 2016). Additionally, BMP guidance documents addressing road placement make clear that roads should avoid or minimize stream crossings and riparian areas. Thus, a BMP based approach reduces the incidence of road-stream crossings and, when deemed unavoidable, BMPs have been developed to install stream crossings while minimizing erosion.

A commenter also stated that some states do not consider the effects of diversion and natural disturbances when designing BMPs for stream crossings. These are important factors to consider. They are not, however, the only variables considered in a stream crossing design; stream flow and volume, soil type, volume and type of vehicle traffic, climate, and many other factors also play a role in determining the optimal design for a stream crossing. Effective stream crossing BMPs depend on site-specific conditions, reflecting the difficulty of setting one-size-fits-all federal requirements. In one study, researchers examined the effects of upgrading poorly designed stream crossings and concluded that the enhanced stream crossings produced little sediment and that improved stream crossings could significantly reduce sediment contributions from forest roads (Nolan et al., 2015). One commenter spoke favorably of several BMPs developed by the USFS for use at stream crossings and recommended that EPA adopt them nationally. EPA encourages state programs to consider USFS stream crossing BMPs for their menus of BMPs.

EPA also received several comments regarding the compliance and monitoring aspects of state programs. One commenter stated that BMP effectiveness rates are overstated and suggested that the appropriate baseline for comparison should be forests in their natural conditions with no roads, whereas most studies compare forest roads with BMPs to forest roads with no BMPs. The commenter also asserted that, based on three studies, the actual efficiency of forest road BMPs is 53-94%. EPA notes in response that forest roads play a critical role in silviculture, recreation, fire suppression, and other uses. EPA does not expect forest roads to be absent from the landscape and therefore does not think that virgin forest must always necessarily serve as the baseline for measuring BMP effectiveness.

A commenter also pointed out that most BMP monitoring 30 is conducted during dry periods, when effectiveness at preventing stormwater runoff may be more difficult to discern. The commenter noted that variability in BMP performance monitoring can be as high as 50-100%, which would require frequent sampling to distinguish sediment derived from forest roads versus other sources. A number of BMP performance studies are conducted under wet weather conditions, including most of those cited in Section V of this document. However, BMP effectiveness also can be assessed to a large extent in dry weather, as evidence of soil movement is often visible for a significant time period after rainfall events. For example, gullying or landslides will be clearly visible while sediment deposition in low areas or waterbodies will also be visible.

Another commenter stated that standardizing BMP compliance assessments and reporting protocols is necessary. They add that most monitoring focuses on whether a BMP has been implemented, rather than monitoring water quality for compliance with water quality standards. The commenter cited data from Virginia that noted a 32% non-compliance rate for stream crossing BMPs. EPA recognizes that states have used a variety of monitoring and reporting mechanisms over time and that this can inhibit broader analyses about BMP compliance. However, as discussed in Section VI.A.2 of this document, two large groups of states have adopted regional standardized monitoring protocols to promote consistency in compliance assessment and reporting.

First, the SGSF has been implementing a broad monitoring program in 13 southeastern states for nearly a decade. Second, the joint effort between USFS and NAASF developed a similar standardized protocol for evaluating BMP implementation and effectiveness. These two protocols have spread a standardized monitoring process to a significant number of states with active forestry programs. Such standardization efforts are examples of the type of intra-state consistency that a federal EPA program could theoretically institute; their spread in the absence of EPA regulations provides an example in which a new EPA program would be duplicative.

Some commenters stated the lack of a national BMP program leads to inconsistent BMP application and insufficient water quality protections. EPA sees the range of designs in BMP programs as an appropriate response to the diversity of conditions these programs are intended to address. State or regional timber operations vary in intensity, as do the types of forest management programs states or other oversight agencies implement. BMPs used at a site will differ depending on the factors above, as well as others, such as localized scientific research that determines the most effective approaches to managing stormwater. Within different state frameworks, certain aspects of BMP programs are largely consistent. For example, state BMP categories typically encompass forest road location/design/construction; road maintenance; stream crossings; stream management zones/bank stabilization/buffer strips; and many states address forest road retirement and wet weather/winter use.

Many states are taking the lead in enhancing their programs to encompass newly developed methods to reduce water quality impacts from forest roads. For example, CA's “Road Rules, 2013”, which was first implemented in January 2015, requires that all forest roads used as part of an approved plan be hydrologically disconnected from waters (EPA-HQ-OW-2015-0668-0055). In the Southern region, the Southern Group of State Foresters Silviculture Best Management Practices Implementation Monitoring framework requires all southern states to include in their implementation monitoring reports counts of water quality risks. Finally, while “traditionally a problem area within all states, compliance with stream crossing BMPs continues to improve as a result of increased education of landowners and managers as well as increased acreage of certified forestland in the region (Schilling et al., 2009).” [Ice et al., 2010.]

One commenter stated, “Congress has failed to adequately invest in the National Forest System roads budget. Annual spending has declined from over $236 million to less than $159 million in the last six fiscal years, when adjusted for inflation.” This has helped to contribute to the development of a more than $5 billion deferred maintenance backlog on the National Forest System. This commenter also suggested that, “[r]egulating stormwater discharges from USFS roads will do nothing to address either the forest health crisis or the disinvestment in maintaining the existing Forest Road system” (Id.). EPA acknowledges that both the USFS and BLM face resource constraints, often must address higher priority issues such as fire suppression to protect lives, and confront other challenges that limit the ability to fully address all issues arising from forest road activity when it comes to maintaining their transportation networks. Another layer of EPA regulations, in addition to existing federal programs addressing water resources protection and restoration, would not address these resources constraints and would likely do little to enhance water quality.

In conclusion, none of these comments alters EPA's determination not to establish a new regulatory program for discharges from forest roads under CWA Section 402(p)(6). While EPA recognizes that discharges from forest roads have significant impacts on water quality in many parts of the country, the Agency has concluded that the most effective way to make further progress in addressing these issues is to support existing state, tribal, federal, and third-party programs. Given the diversity of forest roads programs in this country, some programs will necessarily be more rigorous than others. EPA has considered this variability, but concluded that any consistency that a national regulation could theoretically achieve is far outweighed by the challenges of its implementation.

Table of Contents I. Executive Summary A. Purpose of Regulatory Action B. Summary of Major Provisions C. Costs and Benefits II. Public Participation III. Background A. WTC Health Program Statutory Authority B. Evidence Supporting the Addition of New-Onset COPD and WTC-Related Acute Traumatic Injury to the List of WTC-Related Health Conditions IV. Effects of Rulemaking on Federal Agencies V. Summary of Peer Reviews and Public Comments—New-Onset COPD A. Peer Review B. Public Comment VI. Summary of Peer Reviews and Public Comments—WTC-Related Acute Traumatic Injury A. Peer Review B. Public Comment VII. How To Get Help for WTC-Related Health Conditions VIII. Summary of Final Rule IX. Regulatory Assessment Requirements A. Executive Order 12866 and Executive Order 13563 B. Regulatory Flexibility Act C. Paperwork Reduction Act D. Small Business Regulatory Enforcement Fairness Act E. Unfunded Mandates Reform Act of 1995 F. Executive Order 12988 (Civil Justice) G. Executive Order 13132 (Federalism) H. Executive Order 13045 (Protection of Children From Environmental Health Risks and Safety Risks) I. Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) J. Plain Writing Act of 2010 I. Executive Summary A. Purpose of Regulatory Action

This rulemaking is being conducted in order to add new-onset COPD and WTC-related acute traumatic injury 1 to the List of WTC-Related Health Conditions (List). Following the receipt of letters from the directors of the WTC Health Program Clinical Centers of Excellence (CCEs) and Data Centers to the WTC Health Program supporting coverage of all cases of COPD (including new-onset COPD) and significant traumatic injuries within the Program,2 the Administrator decided to conduct literature reviews regarding COPD and acute traumatic injuries among 9/11 responders and survivors. Based on the findings of those reviews, he determined that the evidence for causal associations between 9/11 exposures and new-onset COPD and acute traumatic injury, respectively, provides sufficient bases for the addition of both health conditions to the List. The Administrator published a proposed rule to add new-onset COPD and acute traumatic injury to the List on September 11, 2015,3 and finalizes the rule in this action.

This final rule adds new-onset COPD and WTC-related acute traumatic injury to the List of WTC-Related Health Conditions in 42 CFR 88.1. As of the effective date of this rule, these conditions will be eligible for treatment by the WTC Health Program.

The addition of new-onset COPD and WTC-related acute traumatic injury to the List of WTC-Related Health Conditions through this rulemaking is estimated to cost the WTC Health Program from $4,602,162 to $5,666,713 annually, between 2016 and 2019. All of the costs to the WTC Health Program are transfers. Benefits to current and future WTC Health Program members may include improved access to care and better treatment outcomes than in the absence of Program coverage.

On September 11, 2015, the Administrator published a notice of proposed rulemaking (NPRM) to propose the addition of new-onset COPD and acute traumatic injury to the List in 42 CFR 88.1.4 The Administrator asked peer reviewers to evaluate the scientific literature review and Administrator's determination and invited interested members of the public or organizations to participate in the rulemaking by submitting written views, opinions, recommendations, and/or data. This final rule describes feedback received from both peer reviewers and public commenters.

A total of six peer reviewers were charged with reviewing the Administrator's evaluation of the evidence for adding the two conditions to the List. Three pulmonary disease experts reviewed the evidence for the addition of new-onset COPD and three injury experts reviewed the evidence for the addition of acute traumatic injury. Specifically, the peer reviewers were asked to answer the following questions:

1. Are you aware of any other studies which should be considered? If so, please identify them.

2. Have the requirements of the Policy and Procedures for Adding Non-Cancer Conditions to the List of WTC-Related Health Conditions 5 appropriately been fulfilled? If not, please explain which elements are missing or deficient.

3. Is the interpretation of the available data appropriate, and does it support the conclusion? If not, please explain why.

Public comments were invited on any topic related to the proposed rule, and specifically on the following questions:

1. Is September 11, 2003 an appropriate deadline by which an individual must have received initial medical treatment for an acute traumatic injury?

2. Is there evidence of acute traumatic injuries that occurred as a result of the September 11, 2001, terrorist attacks that would not be covered by the proposed definition? What are the types of long-term consequences or medically associated health conditions that result from the treatment or progression of acute traumatic injuries like those sustained on or after September 11, 2001?

3. Are data available on the chronic care needs of individuals who suffered acute traumatic injuries during the September 11, 2001, terrorist attacks, and its aftermath that the Administrator can use to estimate the number of current and future WTC Health Program members who may seek certification of WTC-related acute traumatic injury as well as treatment costs?

4. Are data available on the prevalence and cost estimates for new-onset COPD?

The Administrator received 16 submissions to the rulemaking docket from the public, including the following individuals and organizations: 10 unaffiliated commenters; one individual who is a responder or survivor; two self-identified responders; sister non-profit organizations dedicated to preventing and curing alpha-1 antitrypsin deficiency and COPD; a labor union; and the WTC Health Program Survivors and Responders Steering Committees.

The peer reviews and public comments are found in the docket for this rulemaking. Summaries of all peer reviews and public comments, as well as the Administrator's responses, are found below.

Title I of the James Zadroga 9/11 Health and Compensation Act of 2010 (Zadroga Act), Public Law 111-347, as amended by Public Law 114-113, added Title XXXIII to the Public Health Service Act (PHS Act),6 establishing the WTC Health Program within the Department of Health and Human Services (HHS). The WTC Health Program provides medical monitoring and treatment benefits to eligible firefighters and related personnel, law enforcement officers, and rescue, recovery, and cleanup workers who responded to the September 11, 2001, terrorist attacks in New York City, at the Pentagon, and in Shanksville, Pennsylvania (responders), and to eligible persons who were present in the dust or dust cloud on September 11, 2001 or who worked, resided, or attended school, childcare, or adult daycare in the New York City disaster area (survivors).

All references to the Administrator of the WTC Health Program (Administrator) in this document mean the Director of the National Institute for Occupational Safety and Health (NIOSH) or his or her designee. Section 3312(a)(6) of the PHS Act requires the Administrator to conduct rulemaking to propose the addition of a health condition to the List codified in 42 CFR 88.1.

Consideration of an addition to the List may be initiated at the Administrator's discretion 7 or following receipt of a petition by an interested party.8 Under 42 CFR 88.17, the Administrator has established a process by which health conditions may be considered for addition to the List of WTC-Related Health Conditions in § 88.1. Pursuant to section 3312(a)(6)(D) of the PHS Act, whenever the Administrator determines that a condition should be proposed for addition to the List, he is required to publish an NPRM and allow interested parties to comment on the proposed rule.

This document announces that, on June 22, 2016, OMB approved the information collection requirements for FCC Form 601, FCC Application for Radio Service Authorization and 47 CFR 1.2110(j), which was contained in Report and Order, FCC 15-80. The OMB Control Number is 3060-0798. The Commission publishes this document as an announcement of the effective date of the requirements. 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 Cathy Williams, Federal Communications Commission, Room 1-C823, 445 12th Street SW., Washington, DC 20554. Please include the OMB Control Number, 3060-0798, 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 June 22, 2016, for the information collection requirements contained in information collection 3060-0798. Under 5 CFR 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 3060-0798. 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: 3060-0798.

OMB Approval Date: June 22, 2016.

OMB Expiration Date: June 30, 2019.

Title: FCC Application for Radio Service Authorization: Wireless Telecommunications Bureau

Public Safety and Homeland Security Bureau.

Form Number: FCC Form 601.

Respondents: Individuals and households; Business or other for profit entities; Not for profit institutions; and State, local or tribal government.

Number of Respondents and Responses: 253,320 respondents and 253,320 responses.

Estimated Hours per Response: 0.5-1.25 hours.

Frequency of Response: Recordkeeping requirement, third party disclosure requirement, On occasion reporting requirement and periodic reporting requirement.

Total Annual Burden: 222,055 hours.

Total Annual Costs: $71,306,250.

Obligation to Respond: Required to obtain or retain benefits. The statutory authority for this collection of information is contained in 47 U.S.C. 151, 152, 154, 154(i), 155(c), 157, 201, 202, 208, 214, 301, 302a, 303, 307, 308, 309, 310, 311, 314, 316, 319, 324, 331, 332, 333, 336, 534, 535 and 554.

Nature and Extent of Confidentiality: There is no need for confidentiality required with this collection of information.

Privacy Impact Assessment: Yes.

Needs and Uses: On July 20, 2015, the Commission released the Part 1 R&O in which it updated many of its Part 1 competitive bidding rules (See Updating Part 1 Competitive Bidding Rules; Expanding the Economic and Innovation Opportunities of Spectrum Through Incentive Auctions; Petition of DIRECTV Group, Inc. and EchoStar LLC for Expedited Rulemaking to Amend Section 1.2105(a)(2)(xi) and 1.2106(a) of the Commission's Rules and/or for Interim Conditional Waiver; Implementation of the Commercial Spectrum Enhancement Act and Modernization of the Commission's Competitive Bidding Rules and Procedures, Report and Order, Order on Reconsideration of the First Report and Order, Third Order on Reconsideration of the Second Report and Order, and Third Report and Order, FCC 15-80, 30 FCC Rcd 7493 (2015), modified by Erratum, 30 FCC Rcd 8518 (2015) (Part 1 R&O)). Of relevance to the information collection at issue here, the Commission: (1) Implemented a new general prohibition on the filing of auction applications by entities controlled by the same individual or set of individuals (but with a limited exception for qualifying rural wireless partnerships); (2) modified the eligibility requirements for small business benefits, and updated the standardized schedule of small business sizes, including the gross revenues thresholds used to determine eligibility; (3) established a new bidding credit for eligible rural service providers; (4) adopted targeted attribution rules to prevent the unjust enrichment of ineligible entities; and (5) adopted rules prohibiting joint bidding arrangements with limited exceptions. The updated Part 1 rules apply to applicants seeking licenses and permits.

Additionally, on June 2, 2014, the Commission released the Mobile Spectrum Holdings R&O, in which the Commission updated its spectrum screen and established rules for its upcoming auctions of low-band spectrum. Of relevance to the information collection at issue here, the Commission stated that it could reserve spectrum in order to ensure against excessive concentration in holdings of below-1-GHz spectrum (In the Matter of Policies Regarding Mobile Spectrum Holdings, Expanding the Economic and Innovation Opportunities of Spectrum Through Incentive Auctions, FCC 14-63, Report and Order, 29 FCC Rcd 6133, 6190, para. 135 (2014) (Mobile Spectrum Holdings R&O). See also Application Procedures for Broadcast Incentive Auction Scheduled to Begin on March 29, 2016; Technical Formulas for Competitive Bidding, Public Notice, 30 FCC Rcd 11034, Appendix 3 (WTB 2015); Wireless Telecommunications Bureau Releases Updated List of Reserve-Eligible Nationwide Service Providers in each PEA for the Broadcast Incentive Auction, Public Notice, AU No. 14-252 (WTB 2016).

The Commission also revised the currently approved collection of information under OMB Control Number 3060-0798 to permit the collection of the additional information for Commission licenses and permits, pursuant to the rules and information collection requirements adopted by the Commission in the Part 1 R&O and the Mobile Spectrum Holdings R&O. As part of the collection, the Commission is now approved for the information collection and recordkeeping requirements associated with 47 CFR 1.2110(j), 1.2112(b)(2)(iii), 1.2112(b)(2)(v), 1.2112(b)(2)(vii), and 1.2112(b)(2)(viii). Also, in certain circumstances, the Commission requires the applicant to provide copies of their agreements and/or submit exhibits.

In addition, the Commission is now approved for various other, non-substantive editorial/consistency edits and updates to FCC Form 601 that correct inconsistent capitalization of words and other typographical errors, and better align the text on the form with the text in the Commission rules both generally and in connection with recent non-substantive, organizational amendments to the Commission's rules.

I. Background

On November 2, 2015, the Federal Civil Penalties Inflation Adjustment Act Improvement Act (the 2015 Act), Pub. L. 114-74, Section 701, was signed into law. The purpose of the 2015 Act is to improve the effectiveness of civil monetary penalties and to maintain their deterrent effect. The 2015 Act requires agencies to make an initial catch up adjustment to the civil monetary penalties they administer through an interim final rule and then to make subsequent annual adjustments for inflation. The amount of increase of any adjustment to a civil penalty pursuant to the 2015 Act is limited to 150 percent of the current penalty. Agencies are required to issue the interim final rule with the initial catch up adjustment by July 1, 2016.

The method of calculating inflationary adjustments in the 2015 Act differs substantially from the methods used in past inflationary adjustment rulemakings conducted pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990 (the Inflation Adjustment Act), Pub. L. 101-410. Previously, adjustments to civil penalties were conducted under rules that required significant rounding of figures. For example, a penalty increase that was greater than $1,000, but less than or equal to $10,000, would be rounded to the nearest multiple of $1,000. While this allowed penalties to be kept at round numbers, it meant that penalties would often not be increased at all if the inflation factor was not large enough. Furthermore, increases to penalties were capped at 10 percent. Over time, this formula caused penalties to lose value relative to total inflation.

The 2015 Act has removed these rounding rules; now, penalties are simply rounded to the nearest $1. While this creates penalty values that are no longer round numbers, it does ensure that penalties will be increased each year to a figure commensurate with the actual calculated inflation. Furthermore, the 2015 Act “resets” the inflation calculations by excluding prior inflationary adjustments under the Inflation Adjustment Act, which contributed to a decline in the real value of penalty levels. To do this, the 2015 Act requires agencies to identify, for each penalty, the year and corresponding amount(s) for which the maximum penalty level or range of minimum and maximum penalties was established (i.e., originally enacted by Congress) or last adjusted other than pursuant to the Inflation Adjustment Act.

The Director of the Office of Management and Budget (OMB) provided guidance to agencies in a February 24, 2016 memorandum on how to calculate the initial adjustment required by the 2015 Act.1 The initial catch up adjustment is based on the change between the Consumer Price Index for all Urban Consumers (CPI-U) for the month of October in the year the penalty amount was established or last adjusted by Congress and the October 2015 CPI-U. The February 24, 2016 memorandum contains a table with a multiplier for the change in CPI-U from the year the penalty was established or last adjusted to 2015. To arrive at the adjusted penalty the agency must multiply the penalty amount when it was established or last adjusted by Congress, excluding adjustments under the Inflation Adjustment Act, by the multiplier for the increase in CPI-U from the year the penalty was established or adjusted provided in the February 24, 2016 memorandum. The 2015 Act limits the initial inflationary adjustment to 150 percent of the current penalty. To determine whether the increase in the adjusted penalty is less than 150 percent, the agency must multiply the current penalty by 250 percent. The adjusted penalty is the lesser of either the adjusted penalty based on the multiplier for CPI-U in Table A of the February 24, 2016 memorandum or an amount equal to 250% of the current penalty. This interim final rule adjusts the civil penalties for violations of statutes and regulations that NHTSA administers consistent with the February 24, 2016 memorandum.

The maximum civil penalty for a single violation of 30112(a)(1) of Title 49 of the United States Code involving school buses or school bus equipment, or of the prohibition on school system purchases and leases of 15 passenger vans as specified in 30112(a)(2) of Title 49 of the United States Code was set at $10,000 when the penalty was established by the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), Pub. L. 109-59, 119 Stat. 1942, enacted in 2005. Applying the multiplier for the increase in CPI-U for 2005 in Table A of the February 24, 2016 memorandum (1.19397) results in an adjusted civil penalty of $11,940. The maximum civil penalty for a related series of violations of 30112(a)(1) and 30112(a)(2) was $15,000,000 when the penalty was established by SAFETEA-LU in 2005. Applying the multiplier for the increase in CPI-U for 2005 results in an adjusted maximum civil penalty of $17,909,550.

The Moving Ahead for Progress in the 21st Century Act (MAP-21) of 2012, Pub. L. 112-141, established a maximum civil penalty for persons knowingly or willfully submitting materially false or misleading information to NHTSA after certifying that the information was accurate pursuant to 49 U.S.C. 30166(o) of $5,000 per day. Applying the multiplier for the increase in CPI-U for 2012 in Table A of the February 24, 2016 memorandum (1.02819) results in an adjusted civil penalty of $5,141. MAP-21 established a maximum civil penalty for a related series of daily violations of 49 U.S.C. 30166(o) of $1,000,000. Applying the multiplier for the increase in CPI-U for 2012 results in an adjusted civil penalty of $1,028,190 for a related series of daily violations of 49 U.S.C. 30166(o).

The Anti Car Theft Act of 1992, Pub. L. 102-519, 204, 106 Stat. 3393 (1992) established a civil penalty of $1,000 for each violation of the reporting requirements related to maintaining the Nation Motor Vehicle Title Information System. Applying the multiplier for the increase in CPI-U for 1992 in Table A of the February 24, 2016 memorandum (1.67728) results in an adjusted civil penalty of $1,677.

The Motor Vehicle Information and Cost Savings Act (Cost Savings Act), Pub. L. 92-513, 86 Stat. 953, (1972), established a civil penalty of $1,000 for each violation of a bumper standard established pursuant to the Cost Savings Act. Applying the multiplier for the increase in CPI-U for 1972 in Table A of the February 24, 2016 memorandum (5.62265) results in an adjusted civil penalty of $5,623. Since this would result in an increase to the current civil penalty of greater than 150 percent, the adjusted civil penalty is $2,750 (Current penalty $1,100 × 2.5).

The Cost Savings Act also established a maximum civil penalty of $800,000 for a related series of violations of the bumper standards established pursuant to the Act. Applying the multiplier for the increase in CPI-U for 1972 in Table A of the February 24, 2016 memorandum (5.62265) results in an adjusted civil penalty of $4,498,120. Since this would result in an increase to the current civil penalty of greater than 150 percent, the adjusted civil penalty is $3,062,500 (Current penalty $1,225,000 × 2.5).

The Cost Savings Act established a civil penalty of $1,000 for each violation of 49 U.S.C. 32308(a) related to providing information on crashworthiness and damage susceptibility. Applying the multiplier for the increase in CPI-U for 1972 in Table A of the February 24, 2016 memorandum (5.62265) results in an adjusted civil penalty of $5,623. Since this would result in an increase to the current civil penalty of greater than 150 percent, the adjusted civil penalty is $2,750 (Current penalty $1,100 × 2.5). The Cost Savings established a maximum civil penalty of $400,000 for a series of related violations of 49 U.S.C. 32308(a). Applying the multiplier for the increase in CPI-U for 1972 in Table A of the February 24, 2016 memorandum (5.62265) results in an adjusted civil penalty of $2,249,060. Since this would result in an increase to the current civil penalty of greater than 150 percent, the adjusted civil penalty is $1,500,000 (Current penalty $600,000 × 2.5).

The Energy Independence and Security Act of 2007, Pub. L. 110-140, 121 Stat. 1507 (2007) established a civil penalty of $50,000 for each violation related to the tire information fuel efficiency information program under 49 U.S.C. 32304A. Applying the multiplier for the increase in CPI-U for 2007 in Table A of the February 24, 2016 memorandum (1.13833) results in an adjusted civil penalty of $56,917.

The American Automobile Labeling Act, Pub L. 102-388, § 210, 106 Stat. 1556 (1992), established a civil penalty of $1,000 for willfully failing to affix, or failing to maintain, the label required by the Act. Applying the multiplier for the increase in CPI-U for 1992 in Table A of the February 24, 2016 memorandum (1.67728) results in an adjusted civil penalty of $1,677.

MAP-21 adjusted the civil penalty for each violation of 49 U.S.C. Chapter 327 or a regulation issued thereunder related to odometer tampering and disclosure to $10,000 per violation. Applying the multiplier for the increase in CPI-U for 2012 in Table A of the February 24, 2016 memorandum (1.02819) results in an adjusted civil penalty of $10,282. MAP-21 established a maximum civil penalty of $1,000,000 for a related series of violations of 49 U.S.C. Chapter 327 or a regulation issued thereunder. Applying the multiplier for the increase in CPI-U for 2012 results in an adjusted civil penalty of $1,028,190 for a related series of violations.

MAP-21 also adjusted the civil penalty for violations of 49 U.S.C. Chapter 327 or a regulation issued thereunder with intent to defraud to $10,000 per violation. Applying the multiplier for the increase in CPI-U for 2012 results in an adjusted civil penalty of $10,282.

The Motor Vehicle Theft Law Enforcement Act of 1984 (Vehicle Theft Act), Public Law 98-547, § 608, 98 Stat. 2762 (1984), established a civil penalty of $1,000 for each violation of 49 U.S.C. 33114(a)(1)-(4). Applying the multiplier for the increase in CPI-U for 1984 in Table A of the February 24, 2016 memorandum (2.25867) results in an adjusted civil penalty of $2,259. The Vehicle Theft Act also established a maximum penalty of $250,000 for a related series of violations of 49 U.S.C. 33114(a)(1)-(4). Applying the multiplier for the increase in CPI-U for 1984 results in an adjusted civil penalty of $564,668.

The Anti Car Theft Act of 1992 established a civil penalty of $100,000 per day for violations of the Anti Car Theft Act related to operation of a chop shop. Applying the multiplier for the increase in CPI-U for 1992 in Table A of the February 24, 2016 memorandum (1.67728) results in an adjusted civil penalty of $167,728.

The Energy Policy and Conservation Act (EPCA) of 1975, Public Law 94-163, § 508, 89 Stat. 912 (1975), established a civil penalty of $10,000 for each violation of 49 U.S.C. 32911(a). Applying the multiplier for the increase in CPI-U for 1975 in Table A of the February 24, 2016 memorandum (4.3322) results in an adjusted civil penalty of $43,322. Since this would result in an increase to the current civil penalty of greater than 150 percent, the adjusted civil penalty is $40,000 (Current penalty $16,000 × 2.5).

EPCA also established a civil penalty of $5 multiplied by each .1 of a mile a gallon by which the applicable average fuel economy standard under that section exceeds the average fuel economy for automobiles to which the standard applies manufactured by the manufacturer during the model year, multiplied by the number of those automobile and reduced by the credits available to the manufacturer. Applying the multiplier for the increase in CPI-U for 1975 results in an adjusted civil penalty of $22. Since this would result in an increase to the current civil penalty of greater than 150 percent, the adjusted civil penalty is $14 (Current penalty $5.50 × 2.5).

In 1978 Congress amended EPCA, Public Law 95-619, 402, 92 Stat. 3255 (Nov. 9, 1978) to allow the Secretary of Transportation to establish a new civil penalty for each .1 of a mile a gallon by which the applicable average fuel economy standard under EPCA exceeds the average fuel economy for automobiles to which the standard applies manufactured by the manufacturer during the model year. These amendments, which are codified in 49 U.S.C. 32912(c), state that the new civil penalty cannot be more than $10. Applying the multiplier for the increase in CPI-U for 1978 in Table A of the February 24, 2016 memorandum (3.54453) to the $10 maximum penalty the Secretary is permitted to establish under 49 U.S.C. 32912(c) results in an adjusted civil penalty of $35. Since this would result in an increase of greater than 150 percent, the adjusted maximum civil penalty that the Secretary is permitted to establish under 49 U.S.C. 32912(c) is $25 (Current maximum penalty $10 × 2.5). Because the new maximum penalty that the Secretary is permitted to establish under 49 U.S.C. 32912(c) is $25, the new adjusted civil penalty in 49 CFR 578.6(h)(2) of $14 does not exceed the maximum penalty that the Secretary is permitted to impose.

In 2011, the agency established a maximum penalty of $37,500 per vehicle or engine for violations of 49 CFR 535. Applying the multiplier for the increase in CPI-U for 2011 in Table A of the February 24, 2016 memorandum (1.05042) results in an adjusted civil penalty of $39,391.

On December 4, 2015, the FAST Act, Public Law 114-94, was signed into law. Section 24110 of the FAST Act increased the maximum civil penalty that NHTSA may collect for each violation of the Safety Act under 49 U.S.C. 30165(a)(1) and 49 U.S.C. 30165(a)(3) to $21,000 per violation (previously $7,000) and the maximum amount of civil penalties that NHTSA can collect for a related series of violations to $105 million (previously $35 million). In order for these increases to become effective, the Secretary of Transportation was required to certify to Congress that NHTSA has issued the final rule required by Section 31203 of MAP-21. Section 31203 required NHTSA to provide an interpretation of civil penalty factors in 49 U.S.C. 30165 for NHTSA to consider in determining the amount of penalty or compromise for violations of the Safety Act. Pub. L. 112-141, § 31203, 126 Stat. 758 (2012). The increases in maximum civil penalties in Section 24110 of the FAST Act became effective the date of the Secretary's certification.

NHTSA issued the final rule required by Section 31203 of MAP-21 on February 24, 2016. On March 17, 2016, the Secretary certified to Congress by letter to the Chairman and Ranking Member of the Senate Committee on Commerce, Science, and Transportation, and to the Chairman and Ranking Member of the House Committee on Energy and Commerce that NHTSA had issued the Final Rule. On March 22, 2016, the Office of the Secretary of Transportation published a notice in the Federal Register notifying the public that the increase was in effect.2 NHTSA is codifying these increases in this interm final rule.

NHTSA is promulgating this interim final rule to ensure that the amount of civil penalties contained in 49 CFR 578.6 reflect the statutorily mandated ranges as adjusted for inflation. Pursuant to the 2015 Act, NHTSA is required to promulgate a “catch-up adjustment” through an interim final rule. Pursuant to the 2015 Act and 5 U.S.C. 553(b)(3)(B), NHTSA finds that good cause exists for immediate implementation of this interim final rule without prior notice and comment because it would be impracticable to delay publication of this rule for notice and comment and because public comment is unnecessary. By operation of the Act, NHTSA must publish the catch-up adjustment by July 1, 2016. Additionally, the 2015 Act provides a clear formula for adjustment of the civil penalties, leaving the agency little room for discretion. Furthermore, the increases in NHTSA's civil penalty authority authorized by the FAST Act are already in effect and the amendments merely update 49 CFR 578.6 to reflect the new statutory civil penalty. For these reasons, NHTSA finds that notice and comment would be impracticable and is unnecessary in this situation.

NHTSA has considered the impact of this rulemaking action under Executive Order 12866, Executive Order 13563, and the Department of Transportation's regulatory policies and procedures. This rulemaking document was not reviewed under Executive Order 12866 or Executive Order 13563. This action is limited to the adoption of adjustments of civil penalties under statutes that the agency enforces, and has been determined to be not “significant” under the Department of Transportation's regulatory policies and procedures and the policies of the Office of Management and Budget. Because this rulemaking does not change the number of entities that are subject to civil penalties, the impacts are limited. Furthermore, excluding the penalties in 49 CFR 578.6(h)(2) for violations of Corporate Average Fuel Economy standards, this final rule does not establish civil penalty amounts that NHTSA is required to seek.

We also do not expect the increase in the civil penalty amount in 49 CFR 578.6(h)(2) to be economically significant. Over the last five model years, NHTSA has collected an average of $20 million per model year in civil penalties under 49 CFR 578.6(h)(2). Therefore, increasing the current civil penalty amount by 150 percent would not result in an annual effect on the economy of $100 million or more.

Furthermore, NHTSA contends that the economic effects of increasing the civil penalty in 49 CFR 578.6(h)(2) are not directly proportional to the increase in the amount of civil penalty. Manufacturers could pursue several strategies to avoid liability for civil penalties under 49 CFR 578.6(h)(2), including purchasing offset credits from other manufacturers, production and marketing changes to influence the average fuel economy of vehicles produced by the manufacturer, and vehicle design changes intended to increase the vehicle's fuel economy. NHTSA contends that manufacturers will pursue the strategy, or mix on strategies, that results in the lowest overall cost to the manufacturer. For this reason the expected economic impacts of this rule can be expected to be lower than the amount of the increase to the civil penalty amount in 49 CFR 578.6(h)(2).

We have also considered the impacts of this rule under the Regulatory Flexibility Act. I certify that this rule will not have a significant economic impact on a substantial number of small entities. The following provides the factual basis for this certification under 5 U.S.C. 605(b). The amendments almost entirely potentially affect manufacturers of motor vehicles and motor vehicle equipment.

The Small Business Administration's regulations define a small business in part as a business entity “which operates primarily within the United States.” 13 CFR 121.105(a). SBA's size standards were previously organized according to Standard Industrial Classification (“SIC”) Codes. SIC Code 336211 “Motor Vehicle Body Manufacturing” applied a small business size standard of 1,000 employees or fewer. SBA now uses size standards based on the North American Industry Classification System (“NAICS”), Subsector 336—Transportation Equipment Manufacturing, which provides a small business size standard of 1,000 employees or fewer for automobile manufacturing businesses. Other motor vehicle-related industries have lower size requirements that range between 500 and 750 employees.

For example, according to the SBA coding system, businesses that manufacture truck trailers, travel trailers/campers, carburetors, pistons, piston rings, valves, vehicular lighting equipment, motor vehicle seating/interior trim, and motor vehicle stamping qualify as small businesses if they employ 500 or fewer employees. Similarly, businesses that manufacture gasoline engines, engine parts, electrical and electronic equipment (non-vehicle lighting), motor vehicle steering/suspension components (excluding springs), motor vehicle brake systems, transmissions/power train parts, motor vehicle air-conditioning, and all other motor vehicle parts qualify as small businesses if they employ 750 or fewer employees. See http://www.sba.gov/size/sizetable.pdf for further details.

Many small businesses are subject to the penalty provisions of 49 U.S.C. Chapter 301 (Safety Act) and therefore may be affected by the adjustments made in this rulemaking. For example, based on comprehensive reporting pursuant to the early warning reporting (EWR) rule under the Safety Act, 49 CFR part 579, of the more than 60 light vehicle manufacturers reporting, over half are small businesses. Also, there are other, relatively low production vehicle manufacturers that are not subject to comprehensive EWR reporting. Furthermore, there are about 70 registered importers. Equipment manufacturers (including importers), entities selling motor vehicles and motor vehicle equipment, and motor vehicle repair businesses are also subject to penalties under 49 U.S.C. 30165.

As noted throughout this preamble, this rule will only increase the penalty amounts that the agency could obtain for violations covered by 49 CFR 578.6. Under the Safety Act, the penalty provision requires the agency to take into account the size of a business when determining the appropriate penalty in an individual case. See 49 U.S.C. 30165(b). The agency would also consider the size of a business under its civil penalty policy when determining the appropriate civil penalty amount. See 62 FR 37115 (July 10, 1997) (NHTSA's civil penalty policy under the Small Business Regulatory Enforcement Fairness Act (“SBREFA”)). The penalty adjustments would not affect our civil penalty policy under SBREFA.

Since, this regulation does not establish a penalty amount that NHTSA is required to seek, except for civil penalties under 49 CFR 578.6(h)(2), this rule will not have a significant economic impact on small businesses. Furthermore, low volume manufacturers can petition for an exemption from the Corporate Average Fuel Economy standards under 49 CFR part 525. This will lessen the impacts of this rulemaking on small business by allowing them to avoid liability for penalties under 49 CFR 578.6(h)(2). Small organizations and governmental jurisdictions will not be significantly affected as the price of motor vehicles and equipment ought not change as the result of this rule.

Executive Order 13132 requires NHTSA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, the agency may not issue a regulation with Federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, the agency consults with State and local governments, or the agency consults with State and local officials early in the process of developing the proposed regulation.

This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. The reason is that this rule will generally apply to motor vehicle and motor vehicle equipment manufacturers (including importers), entities that sell motor vehicles and equipment and motor vehicle repair businesses. Thus, the requirements of Section 6 of the Executive Order do not apply.

The Unfunded Mandates Reform Act of 1995, Public Law 104-4, requires agencies to prepare a written assessment of the cost, benefits and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually. Because this rule will not have a $100 million effect, no Unfunded Mandates assessment will be prepared.

This rule does not have a retroactive or preemptive effect. Judicial review of this rule may be obtained pursuant to 5 U.S.C. 702. That section does not require that a petition for reconsideration be filed prior to seeking judicial review.

In accordance with the Paperwork Reduction Act of 1980, we state that there are no requirements for information collection associated with this rulemaking action.

Please note that anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78), or you may visit http://dms.dot.gov.

In consideration of the foregoing, 49 CFR part 578 is amended as set forth below.